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AUSE NO.
Justin Jordan IN THE DISTRICT COURT OF
Plaintiff
VS. HARRIS COUNTY, TEXAS
Vopak Terminal Deer Park Inc and
Vopak North America Inc. (d/b/a
Vopak Americas)
Defendant JUDICIAL DISTRICT
PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION
Plaintiff, JUSTIN JORDAN files this petition against VOPAK TERMINAL DEER PARK INC
VOPAK NORTH AMERICA INC. A VOPAK AMERICAS ARKEMA, INC., VAPOR
TECHNOLOGIES, INC, EVOQUA WATER TECHNOLOGIES, LLC and LUNA ENGINEERING AND
DESIGN, INC (collectively, Defendant , and for cause of action respectfully show Court the
following:
PARTIES
Plaintiff is a resident of Chambers County, Texas.
Defendant, VOPAK TERMINAL DEER PARK INC is a Texas Corporation with its
principal place of business in the State of Texas and may be served with citation by serving its registered
agent, C T Corporation System, PO Box 897 Deer Park, Texas 77536 No service is necessary at this
time.
Defendant, VOPAK NORTH AMERICA INC. (D/B/A VOPAK AMERICAS) is a foreign
corporation with its principal place of business in the State of Texas and may be served with citation by
serving its registered agent, Capitol Corporate Services, Inc, 2000 West Loop S. Ste 1550, Houston, Tx
No service necessary at this time.
Defendant, ARKEMA, INC. is a corporation authorized to conduct business in the state of
Texas and may be served with citation by serving its registered agent, Corporation Service Company, DBA
CSC – Lawyers Inco, 211 E. 7th Street, Suite 620, Austin, Texas 78701. No service is necessary at this
time.
1.05 Defendant, VAPOR TECHNOLOGIES, INC. isa Texas Corporation with itsprincipal
place of business in the State of Texas and may be served with citation by serving its registered agent,
Bradley M. Varley, 7200 Williams Street, Hitchcock, Texas 77563. No service is necessary at this time.
1.06 Defendant, EVOQUA WATER TECHNOLOGIES, LLC is a corporation authorized to
conduct business in the state of Texas and may be served with citation by serving its registered agent, CT
Corporation System, 1999 Bryan St., Ste. 900, Dallas, Texas 75201. No service is necessary at this time.
1.07 Defendant, LUNA ENGINEERING AND DESIGN, INC. is a Texas Corporation with its
principal place of business in the State of Texas and may be served with citation by serving its registered
agent, Ronald D. Moon, 726 25th Avenue N, Suite 8B, Texas City, Texas 77590. No service is necessary at
this time.
1.08 Plaintiff requests that this lawsuit be governed by Discovery Plan Level 3 pursuant to Rule
190.4 of the Texas Rules of Civil Procedure.
2.00 JURISDICTION AND VENUE
2.01 The amount in controversy, exclusive of interest and costs, exceeds the minimum
jurisdictional limits of this court.
2.02 Plaintiff, Justin Jordan, while employed by Emission Monitoring Service, Inc. was called
out to perform monitoring services on a tank transfer at the Vopak Defendants’ facility in Harris County,
Texas. While performing the monitoring services Plaintiff was exposed to an emission of an extremely
hazardous amount of Dimethyl Disulfide and other chemicals. The emission was due to the negligence of
each of the Defendants in Harris County, Texas.
3.00 RESPONDEAT SUPERIOR
3.01 Whenever in this petition it is alleged that the Defendants did any act or thing, it is meant
that the Defendants’ agents, officers, servants, employees or representatives did such act or thing and that
at the time such act or thing was done, it was done with the full authorization or ratification of Defendants
or was done in the normal and routine course and scope of employment of Defendants’ officers, agents,
servants, employees or representatives.
3.02 At all times, Defendants, VOPAK TERMINAL DEER PARK INC and VOPAK NORTH
AMERICA INC. (D/B/A VOPAK AMERICAS), ARKEMA, INC., VAPOR TECHNOLOGIES, INC,
EVOQUA WATER TECHNOLOGIES, LLC and LUNA ENGINEERING AND DESIGN, INC. were and
are vicariously liable for all negligent acts committed that caused the serious injuries to Plaintiff and
damages suffered by plaintiff.
4.00 STATEMENT OF FACTS
4.01 Plaintiff brings this suit to recover for personal injuries sustained by Plaintiff as a result of
Dimethyl Disulfide (DMDS) exposure on November 17, 2016, in Harris County, Texas. The exposure was
proximately caused by each of the Defendants’ negligence. On that day, Plaintiff, Justin Jordan, was
dispatched to perform monitoring during a tank transfer of DMDS when he was exposed to the chemical.
Plaintiff was exposed to DMDS because the DMDS scrubber on the Vopak Defendants’ property, part of
Vopak’s transfer system, failed to work properly due to each of the Defendants’ negligence as specified
below. As a result of the incident, Plaintiff, Justin Jordan, sustained personal injuries, resulting in damages
to him.
4.02 On November 17, 2016, in Deer Park, Texas, Plaintiff was an invitee of the Vopak
Defendants on the Vopak Defendants’ property at the Vopak Terminal Deer Park location in Deer Park.
Plaintiff was at the Vopak Terminal Deer Park facility to perform emissions monitoring services when there
was a mechanical failure, as reported by a Vopak employee to Arkema, and Plaintiff, Justin Jordan was
exposed to dangerous chemicals.
4.03 Defendants Vopak Terminal Deer Park Inc. and Vopak Americas through their employees,
agents or representatives knew or should have known of the unreasonably dangerous condition and neither
corrected nor warned the Plaintiff. Plaintiff did not have any knowledge of the dangerous condition and
could not have reasonably been expected to discover it. Defendants’ failure to correct the condition or warn
Plaintiff constitutes negligence, and such negligence was a proximate cause of the occurrence in question
and the Plaintiff's resulting injuries.
4.04 On information and belief, Defendant Arkema is the manufacturer and owner of the DMDS
stored at Vopak’s Deer Park facility and substantially participated in the design of the transfer system,
including the DMDS scrubber. Arkema’s negligence in manufacturing and storing the DMDS and in
designing the transfer system contributed to Mr. Jordan’s injuries. On information and belief, Arkema
recommended the scrubber system made by Defendant Vapor Technologies. Arkema’s negligence caused
or contributed to Plaintiff’s injuries.
4.05 On information and belief, Defendant Evoqua supplied defective parts, carbon beds, for
use in the transfer system; substantially participated in integrating the parts it supplied into the transfer
system, including the DMDS scrubber; and acted negligently in integrating the parts. The Vopak
Defendants rented the carbon beds from Evoqua. Evoqua’s negligence caused or contributed to Plaintiff’s
injuries.
4.06 On information and belief, Defendant Vapor Technologies, Inc. supplied defective parts
for use in the transfer system; substantially participated in integrating the parts it supplied into the transfer
system, including the DMDS scrubber; and acted negligently in integrating the parts. Specifically, on
information and belief, Vapor Technologies supplied the defective scrubber itself, on the recommendation
of Defendant Arkema. Vapor Technologies employee, Brad Varley, and others participated in designing
and engineering the scrubber. Mr. Varley and Vapor Technologies employee, Jimmy Quick, negligently
repaired and modified the scrubber before the incident. Vapor Technologies, Inc.’s negligence caused or
contributed to Plaintiff’s injuries.
4.07 On information and belief, Defendant Luna Engineering and Design Inc., though its agent
Ronald Moon and others, substantially participated in designing Vopak’s transfer system, including the
DMDS scrubber, and did so negligently. Luna Engineering and Design Inc.’s negligence caused or
contributed to Plaintiff’s injuries.
4.08 The injuries and damages suffered by Plaintiff were directly and proximately caused by the
negligence or negligence per se of the Defendants, individually and acting by and through their servants,
agents, and employees. At the time and place in question, Defendants VOPAK TERMINAL DEER PARK
INC and VOPAK NORTH AMERICA INC. (D/B/A VOPAK AMERICAS), ARKEMA, INC., VAPOR
TECHNOLOGIES, INC, EVOQUA WATER TECHNOLOGIES, LLC and LUNA ENGINEERING AND
DESIGN, INC acting through their agents, servants and employees, in the course and scope of their
employment, were guilty of acts of negligence and/or negligence per se, each of which jointly and severally
proximately caused the serious, painful and permanent injuries and damages suffered by Plaintiff.
5.00 CAUSES OF ACTION
A. Negligence and Gross Negligence against all Defendants.
5.01 Plaintiff repeats and realleges each allegation contained above.
5.02 Plaintiff sustained injuries because of Defendants’ negligence and gross negligence when
Defendants:
• Failed to provide adequate warning to Plaintiff of the dangerous condition;
• Failed to inform Plaintiff of the defective nature of the condition;
• Failed to provide adequate training to Plaintiff;
• Failed to properly market the DMDS scrubber or transfer system;
• Failed to properly market the component parts;
• Placed defective components parts into the market;
• Placed the defective DMDS scrubber and transfer system into the market;
• Failed to properly manufacture the DMDS scrubber and transfer system;
• Failed to properly manufacture component parts;
• Failed to provide adequate instruction;
• Failed to properly inspect the premises;
• Failed to properly inspect the DMDS scrubber and transfer system;
• Failed to adequately warn of dangers associated with the defective DMDS scrubber
despite actual or implicit knowledge of the conditions;
• Failed to adequately warn of dangers associated with the defective transfer system despite
actual or implicit knowledge of the conditions;
• Failed to adequately warn of a danger on their property;
• Failed to provide proper safety equipment;
• Failed to ensure its safety systems were adequate and functional;
• Other acts deemed negligent or grossly negligent.
5.03 Defendants owed a duty consistent with the foregoing and breached each of foregoing
duties. These breaches were both the cause in fact and proximate cause of Plaintiff’s damages. As a result
of Defendants’ negligence, Plaintiff suffered damages. Plaintiff is entitled to recover for its damages.
Defendants’ actions were done with a reckless disregard and conscious indifference to the rights of
Plaintiff. As such, Plaintiff is entitled to exemplary damages.
B. Strict Liability (against Defendants Arkema, Vapor Technologies, Evoqua, and Luna Engineering
and Design).
5.04 Plaintiff repeats and realleges each allegation contained above.
5.05 For the following section, “the product” will refer to: the DMDS scrubber and the overall
transfer system.
5.06 Defendants manufactured, designed, distributed or sold the product that injured Plaintiff
with design, manufacturing, or marketing defects.
5.07 Marketing Defect and Failure to Warn: The product was designed, manufactured,
distributed, or sold with one or more marketing defects.
• There was an unreasonable risk in the intended or reasonably foreseeable use of such
product;
• Defendants knew, foresaw, or should have known or foreseen the above risk;
• Defendant failed to adequately warn Plaintiff of the risks, failed to instruct Plaintiff of the
above risks, or failed to adequately instruct Plaintiff how to avoid the dangers.
• The marketing defect(s) rendered the product unreasonably dangerous.
5.08 Design Defect: The product was designed, manufactured, distributed and/or sold with one
or more design defects.
• Defendant designed the product and knew of safer alternatives designs that were
available at the time of production.
• The safer alternative designs would have prevented or significantly reduced the above
risks without substantially impairing the product’s utility.
• The safer alternative design was economically and technologically feasible at the time the
product left the control of Defendants.
• The design defect(s) rendered the product unreasonably dangerous.
5.09 Manufacturing Defect: The product was designed, manufactured, distributed, or sold with
one or more manufacturing defects. The Defendants manufactured the condition and at the time deviated
in the quality of construction, plan, or specifications, rendering the condition unreasonably dangerous.
5.10 The design, manufacturing, and/or marketing defect(s) rendered the product unreasonably
dangerous.
5.11 The design, manufacturing, or marketing defect(s), which rendered the product
unreasonably dangerous were the producing causes to Plaintiff’s injury.
C. Breach of Warranty (against Defendants Arkema, Vapor Technologies, Evoqua, and
Luna Engineering and Design)
5.12 Plaintiff repeats and realleges each allegation contained above.
5.13 Defendants, their agents, servants and employees impliedly and expressly warranted that
they would properly, adequately and safely design, construct, test and install the transfer system,
including the DMDS scrubber and all its components. Defendants, their agents, servants and employees
breached these warranties in one or more of the following ways:
• Failing to perform their work in a good and workmanlike manner;
• Failing to properly design the DMDS scrubber system;
• Failing to properly design the system component parts;
• Failing to properly test the DMDS scrubber system;
• Failing to properly test the component parts;
• Failing to provide a DMDS scrubber system suitable for its intended purpose;
• Failing to provide components parts for their intended purpose;
• Other various breaches of warranty.
5.14 Plaintiff suffered injuries and direct damages as a proximate result of Defendants’ breach
of the express and implied warranties. Further, Plaintiff suffered actual and consequential damages as a
proximate result of Defendants’ breach of express and implied warranties.
6.00 DAMAGES
6.01 As result of the above described, the Plaintiff suffered severe personal injuries causing
Plaintiff to sustain permanent bodily impairment, disfigurement, loss of earning capacity in the past, and a
loss of earning capacity in the future. Plaintiff has experienced physical pain and mental anguish and will,
in reasonable probability, continue to do so in the future. Plaintiff has been caused to incur medical
expenses in the past and will continue to incur medical expenses in the future for Plaintiff’s injuries.
7.00 PRAYER
7.01 WHEREFORE, Plaintiff prays that the Defendants be duly cited to appear and answer
herein; that upon a final trial of this cause, Plaintiff will recover:
1. Judgment against Defendants, jointly and severally, for Plaintiff’s damages as set forth
above as may be found by a jury in an amount over $1,000,000, an amount within the
jurisdictional limits of this Court;
2. Interest on said judgment at the legal rate from date of judgment;
3. Prejudgment interest as allowed by law;
4. Costs of Court;
5. Exemplary damages; and
6. Such other and further relief to which Plaintiff may be entitled.
Respectfully submitted,
Cole, Easley, Sciba & Williams, P.C.
302 West Forrest Street
Victoria, Texas 77901
Phone: (361) 575-0551
Fax: (361) 575-0986
Email: jcole@colefirmservice.com
BY:___________________________
JIM COLE
State Bar No. 04538500
ATTORNEY FOR THE PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to all
counsel in accordance with the Texas Rules of Civil Procedure on this the _____ day of _______________,
2018.
William A. Moss
711 Louisiana, Suite 2300
Houston, Texas 77002
Will.moss@bracewell.com
Via email to gshipley@shipleysnell.com
lmiller@shipleysnell.com
Mr. George T. Shipley
Ms. Laina R. Miller
SHIPLEY, SNELL, MONTGOMERY, LLP
712 Main Street, Suite 1400
Houston, Texas 77002
ATTORNEY FOR DEFENDANT, ARKEMA
Via email to jware@sheehyware.com
James L. Ware,
Sheehy, Ware & Pappas, P.C.
2500 Two Houston Center
909 Fannin St.
Houston, Texas 77010-1003
ATTORNEY FOR DEFENDANT, LUNA ENGINEERING & DESIGN, INC.
Via email to Jim@SmithTexasLaw.com
Mr. Jim Smith
THE SMITH LAW FIRM
550 Westcott St., Suite 250
Houston, Texas 77007-6040
ATTORNEY FOR EVOQUA WATER TECHNOLOGIES, LLC
Via email to HoustonEservice@maronmarvel.com
Mr. Roger H. Nebel
MARON, MARVEL, BRADLEY, ANDERSON & TARDY, LLC
2950 North Loop West, Suite 500
Houston, Texas 77092
ATTORNEYS FOR VAPOR TECHNOLOGIES, INC.
__________________________________
JIM COLE
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AUSE NO. Justin Jordan IN THE DISTRICT COURT OF Plaintiff VS. HARRIS COUNTY, TEXAS Vopak Terminal Deer Park Inc and Vopak North America Inc. (d/b/a Vopak Americas) Defendant JUDICIAL DISTRICT PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION Plaintiff, JUSTIN JORDAN files this petition against VOPAK TERMINAL DEER PARK INC VOPAK NORTH AMERICA INC. A VOPAK AMERICAS ARKEMA, INC., VAPOR TECHNOLOGIES, INC, EVOQUA WATER TECHNOLOGIES, LLC and LUNA ENGINEERING AND DESIGN, INC (collectively, Defendant , and for cause of action respectfully show Court the following: PARTIES Plaintiff is a resident of Chambers County, Texas. Defendant, VOPAK TERMINAL DEER PARK INC is a Texas Corporation with its principal place of business in the State of Texas and may be served with citation by serving its registered agent, C T Corporation System, PO Box 897 Deer Park, Texas 77536 No service is necessary at this time. Defendant, VOPAK NORTH AMERICA INC. (D/B/A VOPAK AMERICAS) is a foreign corporation with its principal place of business in the State of Texas and may be served with citation by serving its registered agent, Capitol Corporate Services, Inc, 2000 West Loop S. Ste 1550, Houston, Tx No service necessary at this time. Defendant, ARKEMA, INC. is a corporation authorized to conduct business in the state of Texas and may be served with citation by serving its registered agent, Corporation Service Company, DBA CSC – Lawyers Inco, 211 E. 7th Street, Suite 620, Austin, Texas 78701. No service is necessary at this time. 1.05 Defendant, VAPOR TECHNOLOGIES, INC. isa Texas Corporation with itsprincipal place of business in the State of Texas and may be served with citation by serving its registered agent, Bradley M. Varley, 7200 Williams Street, Hitchcock, Texas 77563. No service is necessary at this time. 1.06 Defendant, EVOQUA WATER TECHNOLOGIES, LLC is a corporation authorized to conduct business in the state of Texas and may be served with citation by serving its registered agent, CT Corporation System, 1999 Bryan St., Ste. 900, Dallas, Texas 75201. No service is necessary at this time. 1.07 Defendant, LUNA ENGINEERING AND DESIGN, INC. is a Texas Corporation with its principal place of business in the State of Texas and may be served with citation by serving its registered agent, Ronald D. Moon, 726 25th Avenue N, Suite 8B, Texas City, Texas 77590. No service is necessary at this time. 1.08 Plaintiff requests that this lawsuit be governed by Discovery Plan Level 3 pursuant to Rule 190.4 of the Texas Rules of Civil Procedure. 2.00 JURISDICTION AND VENUE 2.01 The amount in controversy, exclusive of interest and costs, exceeds the minimum jurisdictional limits of this court. 2.02 Plaintiff, Justin Jordan, while employed by Emission Monitoring Service, Inc. was called out to perform monitoring services on a tank transfer at the Vopak Defendants’ facility in Harris County, Texas. While performing the monitoring services Plaintiff was exposed to an emission of an extremely hazardous amount of Dimethyl Disulfide and other chemicals. The emission was due to the negligence of each of the Defendants in Harris County, Texas. 3.00 RESPONDEAT SUPERIOR 3.01 Whenever in this petition it is alleged that the Defendants did any act or thing, it is meant that the Defendants’ agents, officers, servants, employees or representatives did such act or thing and that at the time such act or thing was done, it was done with the full authorization or ratification of Defendants or was done in the normal and routine course and scope of employment of Defendants’ officers, agents, servants, employees or representatives. 3.02 At all times, Defendants, VOPAK TERMINAL DEER PARK INC and VOPAK NORTH AMERICA INC. (D/B/A VOPAK AMERICAS), ARKEMA, INC., VAPOR TECHNOLOGIES, INC, EVOQUA WATER TECHNOLOGIES, LLC and LUNA ENGINEERING AND DESIGN, INC. were and are vicariously liable for all negligent acts committed that caused the serious injuries to Plaintiff and damages suffered by plaintiff. 4.00 STATEMENT OF FACTS 4.01 Plaintiff brings this suit to recover for personal injuries sustained by Plaintiff as a result of Dimethyl Disulfide (DMDS) exposure on November 17, 2016, in Harris County, Texas. The exposure was proximately caused by each of the Defendants’ negligence. On that day, Plaintiff, Justin Jordan, was dispatched to perform monitoring during a tank transfer of DMDS when he was exposed to the chemical. Plaintiff was exposed to DMDS because the DMDS scrubber on the Vopak Defendants’ property, part of Vopak’s transfer system, failed to work properly due to each of the Defendants’ negligence as specified below. As a result of the incident, Plaintiff, Justin Jordan, sustained personal injuries, resulting in damages to him. 4.02 On November 17, 2016, in Deer Park, Texas, Plaintiff was an invitee of the Vopak Defendants on the Vopak Defendants’ property at the Vopak Terminal Deer Park location in Deer Park. Plaintiff was at the Vopak Terminal Deer Park facility to perform emissions monitoring services when there was a mechanical failure, as reported by a Vopak employee to Arkema, and Plaintiff, Justin Jordan was exposed to dangerous chemicals. 4.03 Defendants Vopak Terminal Deer Park Inc. and Vopak Americas through their employees, agents or representatives knew or should have known of the unreasonably dangerous condition and neither corrected nor warned the Plaintiff. Plaintiff did not have any knowledge of the dangerous condition and could not have reasonably been expected to discover it. Defendants’ failure to correct the condition or warn Plaintiff constitutes negligence, and such negligence was a proximate cause of the occurrence in question and the Plaintiff's resulting injuries. 4.04 On information and belief, Defendant Arkema is the manufacturer and owner of the DMDS stored at Vopak’s Deer Park facility and substantially participated in the design of the transfer system, including the DMDS scrubber. Arkema’s negligence in manufacturing and storing the DMDS and in designing the transfer system contributed to Mr. Jordan’s injuries. On information and belief, Arkema recommended the scrubber system made by Defendant Vapor Technologies. Arkema’s negligence caused or contributed to Plaintiff’s injuries. 4.05 On information and belief, Defendant Evoqua supplied defective parts, carbon beds, for use in the transfer system; substantially participated in integrating the parts it supplied into the transfer system, including the DMDS scrubber; and acted negligently in integrating the parts. The Vopak Defendants rented the carbon beds from Evoqua. Evoqua’s negligence caused or contributed to Plaintiff’s injuries. 4.06 On information and belief, Defendant Vapor Technologies, Inc. supplied defective parts for use in the transfer system; substantially participated in integrating the parts it supplied into the transfer system, including the DMDS scrubber; and acted negligently in integrating the parts. Specifically, on information and belief, Vapor Technologies supplied the defective scrubber itself, on the recommendation of Defendant Arkema. Vapor Technologies employee, Brad Varley, and others participated in designing and engineering the scrubber. Mr. Varley and Vapor Technologies employee, Jimmy Quick, negligently repaired and modified the scrubber before the incident. Vapor Technologies, Inc.’s negligence caused or contributed to Plaintiff’s injuries. 4.07 On information and belief, Defendant Luna Engineering and Design Inc., though its agent Ronald Moon and others, substantially participated in designing Vopak’s transfer system, including the DMDS scrubber, and did so negligently. Luna Engineering and Design Inc.’s negligence caused or contributed to Plaintiff’s injuries. 4.08 The injuries and damages suffered by Plaintiff were directly and proximately caused by the negligence or negligence per se of the Defendants, individually and acting by and through their servants, agents, and employees. At the time and place in question, Defendants VOPAK TERMINAL DEER PARK INC and VOPAK NORTH AMERICA INC. (D/B/A VOPAK AMERICAS), ARKEMA, INC., VAPOR TECHNOLOGIES, INC, EVOQUA WATER TECHNOLOGIES, LLC and LUNA ENGINEERING AND DESIGN, INC acting through their agents, servants and employees, in the course and scope of their employment, were guilty of acts of negligence and/or negligence per se, each of which jointly and severally proximately caused the serious, painful and permanent injuries and damages suffered by Plaintiff. 5.00 CAUSES OF ACTION A. Negligence and Gross Negligence against all Defendants. 5.01 Plaintiff repeats and realleges each allegation contained above. 5.02 Plaintiff sustained injuries because of Defendants’ negligence and gross negligence when Defendants: • Failed to provide adequate warning to Plaintiff of the dangerous condition; • Failed to inform Plaintiff of the defective nature of the condition; • Failed to provide adequate training to Plaintiff; • Failed to properly market the DMDS scrubber or transfer system; • Failed to properly market the component parts; • Placed defective components parts into the market; • Placed the defective DMDS scrubber and transfer system into the market; • Failed to properly manufacture the DMDS scrubber and transfer system; • Failed to properly manufacture component parts; • Failed to provide adequate instruction; • Failed to properly inspect the premises; • Failed to properly inspect the DMDS scrubber and transfer system; • Failed to adequately warn of dangers associated with the defective DMDS scrubber despite actual or implicit knowledge of the conditions; • Failed to adequately warn of dangers associated with the defective transfer system despite actual or implicit knowledge of the conditions; • Failed to adequately warn of a danger on their property; • Failed to provide proper safety equipment; • Failed to ensure its safety systems were adequate and functional; • Other acts deemed negligent or grossly negligent. 5.03 Defendants owed a duty consistent with the foregoing and breached each of foregoing duties. These breaches were both the cause in fact and proximate cause of Plaintiff’s damages. As a result of Defendants’ negligence, Plaintiff suffered damages. Plaintiff is entitled to recover for its damages. Defendants’ actions were done with a reckless disregard and conscious indifference to the rights of Plaintiff. As such, Plaintiff is entitled to exemplary damages. B. Strict Liability (against Defendants Arkema, Vapor Technologies, Evoqua, and Luna Engineering and Design). 5.04 Plaintiff repeats and realleges each allegation contained above. 5.05 For the following section, “the product” will refer to: the DMDS scrubber and the overall transfer system. 5.06 Defendants manufactured, designed, distributed or sold the product that injured Plaintiff with design, manufacturing, or marketing defects. 5.07 Marketing Defect and Failure to Warn: The product was designed, manufactured, distributed, or sold with one or more marketing defects. • There was an unreasonable risk in the intended or reasonably foreseeable use of such product; • Defendants knew, foresaw, or should have known or foreseen the above risk; • Defendant failed to adequately warn Plaintiff of the risks, failed to instruct Plaintiff of the above risks, or failed to adequately instruct Plaintiff how to avoid the dangers. • The marketing defect(s) rendered the product unreasonably dangerous. 5.08 Design Defect: The product was designed, manufactured, distributed and/or sold with one or more design defects. • Defendant designed the product and knew of safer alternatives designs that were available at the time of production. • The safer alternative designs would have prevented or significantly reduced the above risks without substantially impairing the product’s utility. • The safer alternative design was economically and technologically feasible at the time the product left the control of Defendants. • The design defect(s) rendered the product unreasonably dangerous. 5.09 Manufacturing Defect: The product was designed, manufactured, distributed, or sold with one or more manufacturing defects. The Defendants manufactured the condition and at the time deviated in the quality of construction, plan, or specifications, rendering the condition unreasonably dangerous. 5.10 The design, manufacturing, and/or marketing defect(s) rendered the product unreasonably dangerous. 5.11 The design, manufacturing, or marketing defect(s), which rendered the product unreasonably dangerous were the producing causes to Plaintiff’s injury. C. Breach of Warranty (against Defendants Arkema, Vapor Technologies, Evoqua, and Luna Engineering and Design) 5.12 Plaintiff repeats and realleges each allegation contained above. 5.13 Defendants, their agents, servants and employees impliedly and expressly warranted that they would properly, adequately and safely design, construct, test and install the transfer system, including the DMDS scrubber and all its components. Defendants, their agents, servants and employees breached these warranties in one or more of the following ways: • Failing to perform their work in a good and workmanlike manner; • Failing to properly design the DMDS scrubber system; • Failing to properly design the system component parts; • Failing to properly test the DMDS scrubber system; • Failing to properly test the component parts; • Failing to provide a DMDS scrubber system suitable for its intended purpose; • Failing to provide components parts for their intended purpose; • Other various breaches of warranty. 5.14 Plaintiff suffered injuries and direct damages as a proximate result of Defendants’ breach of the express and implied warranties. Further, Plaintiff suffered actual and consequential damages as a proximate result of Defendants’ breach of express and implied warranties. 6.00 DAMAGES 6.01 As result of the above described, the Plaintiff suffered severe personal injuries causing Plaintiff to sustain permanent bodily impairment, disfigurement, loss of earning capacity in the past, and a loss of earning capacity in the future. Plaintiff has experienced physical pain and mental anguish and will, in reasonable probability, continue to do so in the future. Plaintiff has been caused to incur medical expenses in the past and will continue to incur medical expenses in the future for Plaintiff’s injuries. 7.00 PRAYER 7.01 WHEREFORE, Plaintiff prays that the Defendants be duly cited to appear and answer herein; that upon a final trial of this cause, Plaintiff will recover: 1. Judgment against Defendants, jointly and severally, for Plaintiff’s damages as set forth above as may be found by a jury in an amount over $1,000,000, an amount within the jurisdictional limits of this Court; 2. Interest on said judgment at the legal rate from date of judgment; 3. Prejudgment interest as allowed by law; 4. Costs of Court; 5. Exemplary damages; and 6. Such other and further relief to which Plaintiff may be entitled. Respectfully submitted, Cole, Easley, Sciba & Williams, P.C. 302 West Forrest Street Victoria, Texas 77901 Phone: (361) 575-0551 Fax: (361) 575-0986 Email: jcole@colefirmservice.com BY:___________________________ JIM COLE State Bar No. 04538500 ATTORNEY FOR THE PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to all counsel in accordance with the Texas Rules of Civil Procedure on this the _____ day of _______________, 2018. William A. Moss 711 Louisiana, Suite 2300 Houston, Texas 77002 Will.moss@bracewell.com Via email to gshipley@shipleysnell.com lmiller@shipleysnell.com Mr. George T. Shipley Ms. Laina R. Miller SHIPLEY, SNELL, MONTGOMERY, LLP 712 Main Street, Suite 1400 Houston, Texas 77002 ATTORNEY FOR DEFENDANT, ARKEMA Via email to jware@sheehyware.com James L. Ware, Sheehy, Ware & Pappas, P.C. 2500 Two Houston Center 909 Fannin St. Houston, Texas 77010-1003 ATTORNEY FOR DEFENDANT, LUNA ENGINEERING & DESIGN, INC. Via email to Jim@SmithTexasLaw.com Mr. Jim Smith THE SMITH LAW FIRM 550 Westcott St., Suite 250 Houston, Texas 77007-6040 ATTORNEY FOR EVOQUA WATER TECHNOLOGIES, LLC Via email to HoustonEservice@maronmarvel.com Mr. Roger H. Nebel MARON, MARVEL, BRADLEY, ANDERSON & TARDY, LLC 2950 North Loop West, Suite 500 Houston, Texas 77092 ATTORNEYS FOR VAPOR TECHNOLOGIES, INC. __________________________________ JIM COLE