Filed 12 July 11 P7:25

2012-39857 I Court: 125

CAUSE NO. _ _ _ __ DAO VAN PHO. DUNG HONG NGUYEN, KHANH VANTRAN, HONG VAN PHAM MINH DUC TRUONG. NAM VANTRAN. SANH VAN NGUYEN, TANG HUU NGUYEN,TRUNG TRAN , VAN DUONG NGUYEN , VI DUC LUU, and VICTOR VLNH LOC VO,

Chris Daniel - District Cieri< Harris County

ED101J016970904

By: Nelson Cuero

IN THE DlSTRICT COURT OF

Plaintiffs, w. INTERNATIONAL PAPER COMPANY, MCGINNES INDUSTRIAL MAINTENANCE CORPORATION , WASTE MANAGEMENT, INC., and WASTE MANAGEMENT OF

HARR IS COUNTY, TEXAS

TEXAS, INC., Defendants.

_ _ JUDICIAL DISTR ICT

PLAINTIFFS' OR IG INA L PETIT ION AND REQUEST FOR DISCLOSURES

TO THE HONORABLE JUDGE OF SAID COURT: COME NOW Dao Van Pho, Dung Hong Nguyen, Hong Van Pham . Khanh Van Tran, Minh Due Truong, Nam Vru1 Trru1, Sanh Van Nguyen, Tang Huu Nguyen, Trung Tran, Van Duong Nguyen, Vi Due Luu , and Victor Vinh Loc Vo ("Plaintiffs") and file this their Original Petition and Request for Disclosures, and in suppo1t thereof would show as follows:
I. DISCOVERY

I.

Discovery should be conducted in accordance with Discovery Control Plan Level

3 under Texas Rule of Civil Procedure 190.4. This action will require a detailed docket control order to govem discovery dead lines.

2.

Plaintiffs fm1her hereby give actual notice to all Parties in thi s case that. in

accordance with Texas Rules of Civil Procedure 193.7, any and all documents produced by a Party during discovery may be used against that Party in any pretrial proceeding or at trial without the necessity of authenticating the document.
ll . PARTIES

3.

Plaintiffs Dao Van Pho, Dung Hong Nguyen. Hong Van Pham. Khanh VanTran,

Minh Due Tmong. Nam Van Tran, Sanh Van Nguyen, Tang Huu Nguyen. Tnmg Tran, Van Duong Nguyen , Vi Due Luu, and Victor Vinh Loc Vo are each residents of Harris County, Texas. 4. Defendant International Paper Company ("International Paper"), successor to

Champion Papers, Inc. , is a corporation incorporated in the State of New York. It can be served through its registered agent for process CT Corporation System. 350 N. St. Paul Street, Suite 2900. Dallas, Texas 75201-4234. 5. Defendant McGinnis Industria l Ma intenance Corporation ("M IMC") is a

corporation incorporated in the State of Texas, with its principal place of business in Houston, Texas. MfMC is wholly owned and controlled by Waste Management of Texas, Inc., which is owned by Waste Management , Inc. It can be served through its regi stered agent for process CT Corporation System, 350 N. St. Pau l Street. Suite 2900, Dallas. Texas 75201-4234. 6. Defendant Waste Management, Inc. (" Waste Management") is a corporation

incorporated in the State of Delaware, with its principal place of business in Houston , Texas . Waste Management has its principal place of business in Texas because it maintains its corporate offices in Houston , and those omces contain its high level officers who direct, control and

coordinate its activities. It can be served through its registered agent for process CT Corporation System, 350 N. St. Paul Street. Suite 2900. Dallas, Texas 75201-4234. 7. Defendant Waste Management of Texas, Inc. ("WMOT") is a corporation

incorporated i.n the State of Texas, with it.s principal place of business in Houston, Texas. Doing business in Texas as Waste Management, WMOT owns 100% of the stock of MlMC and has common directors for both companies as shown below: MIMC Directors: Gregory T. Sangalis Bryan J. Blankfield David P. Steiner Linda J. Smith WMOT Directors: Gregory T. Sangalis Bryan J . Blank field David P. Steiner Linda J. Smith

5/ 1/ 1999 to 7/29/1999 7129/ 1999 to 2/ 1/20 11 2/1/200 I to 7/ 1/2003 7/1/2003 to present (as of 2/27/2009)

51111999 to 7/29/1999 712911999 to 2/ 1/20 L I

2/ 1/200 I to 7/ 1/2003 7/1/2003 to present (as of 2/27/2009)

It can be served through its registered agent for process CT Corporation System, 350 N. St. Pau l Street, Suite 2900, Dallas, Texas 75201-4234.

Ill. .J URISDICTION AND VENUE

8. The Court has jurisdiction over Defendants because they are located in Texas

and/or conduct business in Texas. Additionally, Defendants have committed torts in the State of Texas as set forth in this Original Petition. jurisdictional requirement of this Court. 9. Venue of this action is proper and maintainable under Texas Civil Practice and Moreover, Plaintiffs' damages exceed the

Remedies Code section 15.002(a)(3) because aU or a substantial part of the events or omissions giving rise to the c laims herein occuned in Harris County, Texas. Moreover, the principal offices of Defendants Waste Management and WMOT are located in Harris County, Texas.

Under section 15.005 of the Texas Civil Practice and Remedies Code. when venue is established against one defendant, the Court has venue regard ing all defendants in c laims or actions arising out of the same transaction. occurrence. or series of transactions or occurrences.

lV.
RELEVANT FACTS
10. This case centers on Defendants' paper mill in Pasadena, Texas ("the Paper Mill")

and its wrongful, decades-long release of dangerous di.oxins and other chemicals into the waters of the San Jacinto River. Because such discharges have resulted in injuries to Plaintiffs-<:rab fishermen and others who have personally suffered direct damages to their property and bodies as a resu lt of Defendants' conduct-Plaintiffs bring this suit and seek redress as set forth herein.

A.

The Dangers of l>ioxin

II. The primary pollutant at issue is 2,3,7 ,8- Tetrachlorod ibenzo-p-dioxin ("2,3,7 ,8-

TCDD"), a type of dioxin widely regarded as the most toxic chemical ever made by man. The U.S. Department of Health and Human Services has determined that 2,3,7,8-TCDD may reasonably be anticipated to cause cancer, and the World Health Organization has determined that 2,3,7,8- TCDD is a human carcinogen. In humans , the most common health effect from 2,3,7,8-TCDD is chloracne, a severe skin disease, with studies also showing that the dioxin may cause changes to blood and urine that may indicate li ver damage , alter glucose metaboli sm. and change hormone levels. In certain animal species, 2,3,7 ,8-TCDD is especially harmful and can cause death after a single ex posure, in addition to immune system disorders, li ver damage. reproductive damage, and birth defects in animals. 12. Due to Defendants' actions and omissions, this dangerous dioxin has been

discharged into the San Jacinto Ri ver over the past 45 years, and indeed continues to this very

day to seep into the River's waters, where Texans, including Plaintiffs, swim. fish, play. and work. B. Defen da nts' Discha rge of Dioxin into the San J acinto River 13. The origins of this case go back to September 1965, when Defendant MIMC (now

wholly owned by Defendant WMOT) acquired an exclusive waste disposal contract to dispose of waste from the Champion paper mill in Pasadena. Texas. While Champion (now Defendant l ntemational Paper) made money by selling its paper. its paper mill produced as a dangerous byproduct 2,3,7,8-TCDD, as well as other dioxins,that Champion sought to dispose. Champion chose to have its diox in waste dumped into ponds bui lt by MfMC located in an area near where the Interstate Highway 10 Bridge crosses over the San Jacinto River, east of the c ity of Houston between the areas known as Channe lview and Highlands, Texas (the "Site"). 14. MlMC constructed its waste ponds so that they were directly adjacent to. and

jutting out into, the San J acinto River. Records indicate that the waste ponds were frequently inundated by the River. In addition to the fact that the dioxin waste seeped from the ponds into the River, records show that liquid waste was also intentionally pumped ou t of one of the ponds at the Site, directly into the San Jacinto River. MIMC and Champion were ordered to stop discharging waste from the ponds into the San Jacinto Ri ver, though the subsequent records show that wastes continued to seep from the ponds and the pond levees deteriorated causing continuous re leases of dioxin over the following years and decades. 15. Defendants ultimately just abandoned the leaking ponds full of their toxic wastes

and left their dioxin unattended and unprotected , causing and allowing the 2,3 ,7 .8-TCDD to quietly seep and migrate even further into the environment. Detcndants' abandonment caused pans of the waste ponds full of diox in to become submerged below the San Jacinto Ri ver's water

surface allowing continuous releases of the dioxin into the water. Aerial photographs attached as Exhibits A, B and C show the Site being submerged under the waters of the San Jacinto River. The Defendants' inaction and failure to take care of the wastes they dumped into the ponds resulted in their dioxin being released and discharged directly and continuously into the Rive r for more than 45 years. C. The Effects of Defendants' Actions and Omissions 16. The result of Defendants' decisions, actions. and omissions has been ecological

disaster for the Site and its surrmmding areas along the San Jacinto. Ecological health in the River has been documented as be ing threatened at every level of the food cha in. Data collected by Texas state agencies in various watershed studies have indicated that fish and shellfish tissue samples taken in the San Jacinto River contain unusually high dioxin concentrations and exceeded the health-based standard in 97% of fi sh samples and in 95% of the crab samples. Because of these health risks, the State of Texas has issued a consumption advisory for crab and all species of fish from the area of the San Jacinto River along the Site, warning women who are nursing , pregnant or who may become pregnant , a nd ch ildren under I2 not to consume any fish or blue crab from the area. All others are advised to consume no more than 8 ounces of certain fish within any given month. Adults and children are also advised to avoid the risk of exposure through skin contact by not camping, fishing or picnick ing near the Site. Further testing and chemical analysis confirm that both human and ecological health are threatened by releases of dioxin from the Site and that Defendants' dioxin continues to migrate from the waste ponds into the San Jacinto River. I 7. In 2008. at the urging of Harris County and others. the San Jacinto River Site was

ultimately placed on the National Priorities List for Superfund Sites . This state court laws uit

seeks monetary re lief under state law and does not seek or challenge any cleanup. removal , or remedial action dictated by federal law. and it does not assert any federal law claims. 18. Defendants should now be required to answer to those directly injured by their

actions for taking the San Jacinto River from them. During all times relevant to this lawsuit, Defendants neglected to take any action to protect the citizens (including Plaintiffs) and resources of Harris County from the dioxin being released into the San Jacinto River. Despite the fish advisories. the science. and the great weight of evidence of human health and ecological risks , Defendants have taken the position that there are "minimal health effects from dioxin" and that "dioxin is not bad for human consumpti on." Unfortunately, the decades of impact from the dioxin-laden River cannot be minimized and Plaintiffs will continue to bear the burdens and ri sks associated with the Defendants' persistent toxin and their violations of state law for many more decades to come. 19. Defendants are sophisticated corporations that, on information and belief, are

aware of the documented health effects of thei r dioxin on human health and the environment. that their practices of causing and allowing dioxins to pollute the waters of the State of Texas constitute serious violations of state law , and that they are subject to civil penalties to Harris County for polluting the water and creating unacceptable risks to human health and the e nvironment, among other th ings. 20. Defendants achieved a tremendous economic benefit by leaving fishermen and

crabbers holding their waste while they pocketed the prolits saved from not having to pay for proper disposal, putting them at a competitive advantage over other responsible companies.' The

In 2010 alone, Defendant International Paper reponed over $644 million in net profits and $25 billion in assets . and Defend>tnl Waste Management reported over $950 millio n in ne t profits and $2 1 billion in assets. Bcc>tuse Defe ndants have left a legacy of pollution in the San J>tcinto River instead of spending the money to properly

companies who profited from this behavior shou ld pay for and be penalized for the damages and risks they have caused.

v.
CAUSES OF ACTION A. Negligence and Negligence Per Se of MlMC, Waste Management, and WMOT
21. Plaintiffs incorporate by reference Paragraphs 9 through 19 above as if fully

stated herein. Defendants MlMC, Waste Management , and WMOT were the operators of the Site and owed a duty to use a high degree of care, as that term is understood in Texas Jaw, and to act in a very cautious, competent and prudent manner when disposing of toxic waste. Defendants failed in this respect which failure proximately caused and resulted in the inj uries and damages sustained by Plaintiffs. 22. Defendants breached their duties of care in lhe follow ing non-exclusive respects:

trespassing on property, interfering with business, harming property and persons. infecting food sources, e.g., crabs ru1d fish known to be consumed for food , creating nuisances and injuries by: a. b. failing to adequately maintain and/or repair the pond levees; failing to properly inspect the pond levees;

c. failing to sample and test the waste water discharges to detect existence of unpermitted chemicals. like dioxins, as any reasonable man would under similar c ircumstances; d. failing to comply with obligations to residents , fishermen. crabbers, land owners, businesses; e. fail ing to give notice of dru1ger aJJd hazards created by the defendrults , misrepresenting dangers and hazards, engaging in false, misleading and unfai r trade practices. solely for greed and profits that when compared to the injuries aJJd damages caused to the claimants and others in the community were clearly in reckless disregard for the risks associated with the behavior of defendants:

dispose of their dangerous chemicals. it is appropriate th:.H they now compensate Plaintiffs for the consequence of their choices. actions and inaction tlmt h:lve put Plaint iffs at risk.

23.

Defendants were negligent per se because they failed to immediately undertake

reasonable actions to abate and remove the discharge of hazardous substances from the Site in violation of the Water Code. including but not limited to section 26.266. 24. Defendants' failures constitute negligence and negl igence per se, and such

negligence and negligence per se proximately caused the occurrence in question and the resulting damages to Plaintiffs.

B.

Negligence and Negligence Per Se of International Paper

25. Plaintiffs incorporate by reference Paragraphs 9 through 19 above as if fully

stated herein. Defendant International Paper was negligent and negligent per se in allowing Defendants MIMC, Waste Management, and WMOT to dispose of its toxic waste at the Site in a negligem manner. International Paper had and breached a nondelegable duty to avoid harm to Plaintiffs caused by the negligence of Defendants MIMC. Waste Management. and WMOT while disposing of Internat ional Paper's toxic waste. Disposal of toxic waste is inherently

e dangerous in its nature and proximately caused for seeable injury and damages to Plaintiffs.

C.

Trespass
26. Plaintiffs incorporate by reference Paragraphs 9 through 19 above as if fully Defendants' actions are acts of trespass on property and rights of commerce

stated herein.

available to Plaintiffs. Defendants' actions were known to likely injure and damage individuals who use the water that was knowingly being polluted and/or polluted with reckless disregard for the owners of real property and chattels. Defendants have known for many years of the risks associated with the discharge of chemicals, waste water contaminated with unperrnjtted substances, wh ich on information and belief create hazards known to be harmful to plaintiffs and property of plaintiffs were clearly foreseeable because the plaintiffs were known to likely

come in contact with the discharges. For profit and to avoid expenditures for safe treatment of wastes, defendants have engaged in unsafe and injurious practices trespassing upon property of and inj uring Plainti ffs and their property.

D.

Nuisance
27. Plaintiffs incorporate by reference Paragraphs 9 through 19 above as if fully

stated here in. The acts of Defendants were known to be tox ic or should have been known to be toxic and likely to create a nuisance interfering with the rights of Plaintiffs to fish and crab or to enjoy their real property and chatte ls.

E.

Civil Conspiracy
28. Plaintiffs incorporate by reference Paragraphs 9 through 19 above as if fu ll y Defendants are liable for civil conspiracy in that they were members of a

stated herein.

combination, where the object of such combination was to wrongfully pollute the waters of the San Jacinto River in violation of state law and the dutie.s owed by them to Plaintiffs. Defendants had a meeting of the minds on the object or course of action , and they committed an unlawful , overt act to further the object or course of action when they elected to cause the pollution of the San Jacinto Ri ver.

F.

Medical Monitoring
29. Plaintiffs incorporate by reference Paragraphs 9 through 19 above as if fully

stated herein. Upon information and belief, Defendants failed to disclose the health hazards of contaminants generated through operations and processes at the San Jacinto Ri ver. At all

relevant times. Defendants knew or should have known the hazards of its waste stream and effluent discharge(s) and release(s).

10

30.

Upon information and bel ief. Defendants failed to fully disclose the truth to

Harris County and state government officials regarding the health effects of contaminants generated by its operations and production . Moreover, Defendants negligently failed to timely disclose the complete chemical composition of the waste and discharged or released materials, even though the information necessary to ascertain the risks to human health was known to and in the custody of Defendants . In particular. Defendants negligently failed to timely and fully reveal in formation to the Plaintiffs. the Harris County's authority and the state Department of Health and Hospitals, state Office of Public Health, all of which is necessary to determine the health effects and medical costs associated with ex posure to hazardous and tOxic chemica ls or contaminants origi nating from the Site. 31. Defendants' actions or inaction have resulted in the unnecessary exposure of

Plaintiffs to toxic chemicals with a corresponding increased ri sk of fut ure adverse health effects, aiJments and poteotial i.ncreased risk of cancer or serious iJ iness. 32. Defendants' wrongfu l conduct and resu lting impact to the health, safety and

welfare of Plaintiffs permit the adjudication of the exposed claims as a medical monitoring action for all necessary and appropriate final injunctive relief or correspondi ng declaratory relief with respect to the Plaintiffs as a whole: a. Plaintiffs have significant ex posure
tO

a proven hazardous substance;

b. As a result of this exposure, Plaintiffs suffer a significantly increased risk of contracting a serious latent disease; c. Plaintiffs' risk of contracting a serious latent disease is greater than ( I) the risk of corJtractiJlg the same disease had they not been exposed and (2) the chances of members of the general non-exposed public of developing the d isease; d. A monitoring procedure exists that makes the early detection of the disease possible;

II

e. The monitoring procedures are prescribed by medical professionals and such monitoring is reasonably necessary for early detection and treatment ; f. The increased risk of disease from exposu re warrants med ical monitoring beyond that which an individual would nom1ally pursue; g. Medical benefits are gained through early detection of disease; and

But for Defendants' actions or inaction, the members would not have incurred the h. additional costs of medical monitoring and treaunent resulting from exposure. VI. DAMAGES 33. Plaintiffs have directly and proximately suffered non-contingent , unliquidated

actual. special, and consequential damages. as well as lost profits that are within the jurisdictional limits of this Court. 34. Plaintiffs are also entitled to recover punjti ve or exemplary damages pursuant to

the Texas Civil Practices and Remedies Code and Texas common law. Defendants' conduct was done knowingly. with actual awareness, malice. and intent. and/or with such an entire want of care as to indicate that the acts or omissions complained of herein were the result of a conscious indifference to the rights . welfare , and/or safety of Plaintiffs such that Plaintiffs are entitled to an award of exemplary or pun itive damages commensurate with the facts, to be detem1ined by the jury.
VII,

REQUEST FOR .JURY TRIAL

35. Plaintiffs respectfully request a jury trial in this cause. hav ing already tendered the

appropriate jury fee with the Clerk of the Court.

12

vm .
REQ UEST FOR DISCLOSURE 36. Plaintiffs request that Defendants disc lose all information and documents required

under Rule 194 of the Texas Rules of Civi l Procedure within 50 days from the date of service of the request. PR AYE R For the reasons set fonh above, Plaintiffs respectfully request that. upon a trial on the merits, Plaintiffs be granted judgment against Defendant for actual, s pecial, consequential , additionally and exemplary damage; prejudgment and postjudgment interest at a rate allowed by law unti l paid; reasonable and necessary attorney's fees and a ll costs of court and expenses incurred by Plaintiffs in the in vestigation and prosecution of this case; and any such further relief, at law or in equity , to which Plaintiffs may s how themselves justl y e ntitled.

Respectfully submitted ,

RILL & RILL P .C. L AW FlRM

By:

Is! Marc Hill

J. MARCUS "MARC" H[LL State Bar No. 09638150 1770 St. James. Suite liS Houston. Texas 77056 Telephone: (713) 688-6318 Telecopier: (713) 688-2817

THORN HILL LAW FlRM, A PLC TOM W. THORNHILL State Bar No. 24076982 1308 Ninth Street Slidell. Louisiana 70458 Telephone: (985) 641-5010 Telecopier: (985) 64 1-50 II 13

LEVINTHAL WiLKINS & NGUYEN PLLC BA NGUYEN State Bar No. 24027566 I Il l Bagby Street, Suite 26 10 Houston. Texas 77002 Telephone: (7 I 3) 275-9700 Telecopier: (7 13) 275-970 l T.HE TAMMYTRAN LAW FlRM ATTORNEYS AT LAW, LLP TAMMYTRAN State Bar No. 20 186400 PETE MAl State Bar No. 24029702 JOHN NA State Bar No. 24074786 2915 Fannin Houston. Texas 7702 Telephone: (7 13) 655-0737 Telecopier: (7 13) 655-0823 A1.'TORNEYS FOR PLAI NTiFFS

14