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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS


CORPUS CHRISTI DIVISION
TEXAS STATE AQUARIUM
Plaintiff,
vs.
FISHMAN CHEMICAL OF NORTH
CAROLINA, LLC, DAVID A. FISHMAN
A/K/A THE FISH DOCTOR, AND
MICHAEL FISHMAN
Defendants

CIVIL ACTION NO. ____________

PLAINTIFFS ORIGINAL COMPLAINT


TO THE HONORABLE COURT:
COMES NOW, Texas State Aquarium (hereinafter referred to by name, as
Plaintiff, or as TSA) bringing this suit naming Fishman Chemical of North Carolina,
LLC, David A. Fishman a/k/a The Fish Doctor, and Michael Fishman, (hereinafter
collectively referred to as Fishman) as Defendants, and for its cause of action would
show the Court as follows:
I. JURISDICTION AND VENUE
1.1

The Court has jurisdiction over this cause of action because it is a cause

of action between citizens of Texas and foreign defendants (North Carolina and
Florida), and the amount in controversy exceeds $75,000.00, exclusive of interest and
costs. 28 U.S.C. 1332(a)(2).
1.2

Venue is proper in the Southern District of Texas under 28 U.S.C.

1391(c). As a corporation, Fishman Chemical of North Carolina, LLC is deemed to

reside in any judicial district in which it is subject to personal jurisdiction at the time the
action is commenced. 28 U.S.C. 1391(c). Defendant Fishman Chemical of North
Carolina, LLC is subject to personal jurisdiction in the Southern District of Texas and for
venue purposes is deemed to reside in the Southern District of Texas. Furthermore,
venue is proper in the Southern District of Texas as Fishman contracted to provide a
product to Plaintiff TSA in the Southern District of Texas, specifically Corpus Christi,
Nueces County, Texas. Venue is additionally proper as Fishman committed a tort
causing injury to Plaintiff TSA in the Southern District of Texas, specifically Corpus
Christi, Nueces County, Texas.
1.3

Fishmans contacts with the State of Texas are continuous and

systematic, such that the court has general personal jurisdiction over Fishman.
1.4

Products manufactured, marketed, and/or labeled by Fishman are

routinely sold in Texas through Fishman.


1.5

Fishman purposefully markets and sells its products in the Southern

District of Texas. Specifically, Fishman solicited the business of TSA while TSA was
located in Southern District of Texas, specifically Corpus Christi, Nueces County,
Texas. Fishman is purposefully operating in Texas, including in the Southern District of
Texas. Fishman has purposefully availed itself of the privileges and benefits of
conducting business in Texas. The Courts exercise of personal jurisdiction over
Fishman comports with due process.

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II. THE PARTIES


2.1

Plaintiff Texas State Aquarium (TSA) is a not-for-profit corporation

organized under the laws of Texas with its principal place of business located in Corpus
Christi, Nueces County, Texas.
2.2

Defendant Fishman Chemical of North Carolina, LLC is a limited liability

company organized under the laws of North Carolina with its principal place of business
located in Florida. Defendant Fishman Chemical of North Carolina, LLC, can be served
with a summons and complaint through its registered agent: Charles McHan, 84 Valley
River Avenue, Murphy, North Carolina, 28906.
2.3

Defendant David A. Fishman, who holds himself out as The Fish Doctor,

is an individual residing in Florida. His last known residential address is 1211 Indian
Mound Trail, Vero Beach, Florida, 32963-2352. His business address is 624 Old Dixie
Hwy. SW, Vero Beach, Florida, 32962. Defendant David A. Fishman, a/k/a The Fish
Doctor can be served with a summons and complaint wherever he may be found.
2.4

Defendant Michael Fishman is an individual residing in Florida. His last

known residential address is 2035 Regatta Dr., Vero Beach, Florida, 32963-2928. His
business address is 624 Old Dixie Hwy. SW, Vero Beach, Florida, 32962. Defendant
Michael Fishman can be served with a summons and complaint wherever he may be
found.
III. BACKGROUND FACTS
A.

HISTORY OF THE TEXAS STATE AQUARIUM


3.1

Founded in 1990 and accredited by the Association of Zoos & Aquariums,

the mission of Texas State Aquarium (TSA) is to connect people with nature and inspire

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conservation of the Gulf of Mexico. Each year TSA brings to life stories of marine and
coastal animals and their habitats through a variety of exhibitions and live programming.
Each year TSA cares for hundreds of sick and injured wild animals through our Second
Chances Wildlife Rehabilitation program, and educates over 60,000 students with
environmental education programs provide on site, at their SeaLab facility, into the
schools through our outreach program, and to students all over the world via our
distance learning program.

The animal collection as of April 1, 2015, consisted of

approximately 3000 mammals, birds, reptiles, amphibians, marine and fresh water fish
and invertebrates representing over 300 species. Below is an image of TSAs Island of
Steel Exhibit visited by thousands of patrons each year:

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B.

THE TEXAS STATE AQUARIUM MAIN SYSTEM


3.2

TSAs Main System (MS) is a closed 240,000-gallon seawater system

comprised of nine exhibits ranging in size from 1,330 gallons to 132,500 gallons. Main
system specimens include elasmobranchs (sharks and rays) and teleosts (bony fish).
No invertebrates are held in the MS. The seawater supply is natural seawater from
Corpus Christi Bay. Prior to use in the systems, natural seawater is mechanically filtered
and disinfected with a breakpoint chlorination method for 24 hours. The chlorine is
neutralized using sodium thiosulfate, analyzed for appropriate chemistries, and used
throughout the facility. MS life support operations include rapid sand filtration, protein
fractionation, and ozone disinfection. MS turnover is approximately once every 90
minutes. Seawater chemistries checked daily include pH, salinity (ppt), temperature (C),
and oxidation reduction potential (mV). Sodium carbonate is used as a buffering agent
to increase pH values in the MS.

Attached as Exhibit A is the MS water quality data

from March 16, 2105, through April 16, 2015.


C.

DISCOVERY OF A PARASITE IN THE MS


3.3

TSA has established procedures and protocols for monitoring its exhibits,

the health of the wildlife under its care, and its water systems.

TSA personnel

discovered a monogenean parasite affecting specimens in the MS on December 4,


2014. Attached as Exhibit B is the specimen biopsy showing the monogenean
parasite. Praziquantel was ordered and a seven-day 2.0 mg/L prolonged immersion
treatment was started on or about December 11, 2014. During the praziquantel
treatment, the ozone and fractionation operation were suspended and the systems
skylight was covered. The treatment was administered again on December 19, 2014.

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Specimens exhibited flashing in January and biopsies confirmed monogeneans.


Praziquantel was again administered on or about January 20, 2015. Biopsies on
February 6 and 8, 2015 again confirmed monogeneans. Praziquantel was administered
at 3.2 mg/L on or about February 18, 2015, February 28, 2015, and March 10, 2015.
The 10-day treatment cycle was due to lower temperatures based on seasonality. The
flashing behavior decreased and subsequent sampling of the collection indicated the
infestation had been lessened. Five mortalities throughout the exhibits occurred on April
9, 2015, and biopsies were positive with monogeneans.
D.

PRE-TREATMENT TRIAL AND PROTOCOLS


3.4

In an effort to treat the monogenean infestation, TSA made a decision to

use a chemical with which it had experienced past successes in treating parasitic
infestations such a the monogenean infestation. Prior to its use in the TSA system, the
following testing was done and protocols put in place.
3.5

A trial trichlorfon bath was completed on April 9, 2015 on a heavily-

infested Atlantic spadefish (Chaetodipterus faber). The concentration of the 60-minute


bath was 5.0 mg/L. No adverse affects were noted during the treatment, and dissolved
oxygen was monitored to study anticipated impacts on the large-scale treatment.
Dissolved oxygen saturation decreased approximately 1.0%. Because TSA thought was
that a more-recently manufactured chemical would be more stable, the decision to
purchase a new batch of trichlorfon was made.
3.6

TSA had been solicited by Fishman and had purchased other chemicals

from this supplier previously. The solicitation e-mail sent to TSA specifically referenced
the availability of trichlorfon (and its trade name Dylox). Because of the past history

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with Fishman, TSA ordered 1 kilogram of trichlorfon from Fishman on April 8, 2015.
The package shown below, labeled as one kilogram of Tricholrfon, with an expiration
date of August 2016 and batch number 20130924, was delivered to TSA:

See Exhibit C, Fishman Invoice and Trichlorfon package photo.


3.7

In preparation for the trichlorfon treatment with the newly-acquired batch

of Trichlorfon, approximately 152,000 gallons of seawater was exchanged in the main


system to dilute any residual praziquantel in the system. Atropine had been used in
prior TSA Trichlorfon treatments and a 0.1 mg/kg dose was administered to
elasmobranchs in individual diets and administered to teleosts in a broadcasted
medicated gelatin diet approximately one hour pre-treatment. The nurse sharks
(Ginglymostoma cirratum) consumed the medicated diet; the sand tiger shark
(Carcharias taurus) did not. The broadcast diet was consumed by the majority of
teleosts. Fractionation was suspended at two hours pre-treatment and ozone was

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suspended at three hours pre-treatment.


3.8

Staff was scheduled for 24 hour/day monitoring of the collection and

seawater system. Dissolved oxygen (% saturation), oxidation-reduction potential (mV),


pH, and observational notes were to be recorded at least hourly. Multiple contingency
actions were identified and readied in the event of an adverse reaction. Such
contingency actions included the following:
1) Oxygen and supplemental aeration were verified operational and distributed
throughout the system. Emergency airlifts on the larger exhibits (132,500 gal and
30,000) were activated.
2) The systems reservoir was lowered to make space for 60,000 gallons of
disinfected seawater (this change is volume is reflected in the dose calculation).
The seawater was on standby to immediately dilute the treated system.
3) Nave activated carbon was readied in a pressurized filter.
4) Holding systems were identified and prepared for specimens that needed to be
relocated due to adverse reactions.
E.

TRICHLORFON TREATMENT
3.9

After a literature review and consultation with other aquaria, a dose of 0.30

mg/L trichlorfon was selected. Four separate staff including the veterinarian
independently calculated the dose as a quality control point. The operating volume of
the system was approximately 222,555 gallons and the active ingredient of trichlorfon
was 90%. The administered dose was 280 g. Additional quality control points were
included during the weighing of the trichlorfon. Non Animal Care staff observed the
weighing of the trichlorfon to ensure the accuracy of the dose. The trichlorfon was

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solubilized in approximately 11.5 l of DI water. The trichlorfon solution was administered


into the systems reservoir starting at approximately 1700 hours and the entire dose had
been added by approximately 1800 hours. Also of note is that prior to the most recent
monogenean infestation at TSA, past medical records note trichlorfon treatments for
monogeneans dating back to the mid 1990s. Past dosages ranged from 0.50 mg/L to
0.75 mg/L. There are no notes of any adverse reactions during past treatments.
F.

TREATMENT EVENTS AND TRAGEDY


3.10

Adverse reactions were initially noted in Bermuda chubs (Kyphosus

sectatrix) at 105 minutes post-treatment, and some specimen regurgitated the atropine
gelatin diet. All contingency actions were initiated at 110 minutes post-treatment,
including the activation of ozone, fractionation, and activated carbon. At 10 hours post
treatment, the system experienced approximately 98% mortality, 389 specimens. These
mortalities included specimens that were moved to holding systems before they even
appeared to be affected by the dosing. Specimens moved also received atropine IM
during the move from the exhibit to the holding systems. This included all the
elasmobranchs. Despite following all protocol and procedures in place, TSA was able
to save only 9 of the specimens in the MS and ultimately lost nearly 400 specimens.
G.

OBSERVATIONAL NOTES
3.11

Staff noted that specimens across the system were rapidly swimming and

aggressively flashing at 1800 hours, but had calmed down by 1900 hours. Prior to the
administration of the trichlorfon (1620 hours), dissolved oxygen saturation ranged from
77.8% to 100.6% across the exhibits. At 1820 hours, dissolved oxygen concentrations
were constant with the exception of the exhibit with originally low DO, 77.8%. Dissolved

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oxygen saturation in that exhibit increased to 103.0%. At 2100 hours, all dissolved
oxygen levels maintained at 83.4% to 103.5%. Oxidation-reduction potential in the
system was initially 220 mV at 1620 hours. By 1800 hours ORP had lowered to 161 mV.
Also of note is that teleosts regurgitated the medicated gelatin diet once the system was
symptomatic.
H.

ANALYSIS OF TSAS PROCEDURES AND THE EVENT


3.12

Due to the tragic and devastating results from the tricholorfon treatment,

TSA sent its procedures and protocol to several leading aquatic scientists in the country
to analyze the protocol, procedures, and the event to determine the root-cause of this
tragedy. In addition, samples of the drug, water samples from the impacted system,
and tissue samples from the impacted fish were sent out for professional analysis. As
will be explained more thoroughly below, the consensus from the leading aquatic
scientists who reviewed the available information was that the trichlorofon was not
actually tricholorfon rather it was a highly toxic chemical believed to be hydroquinone.
3.13

Among the leading aquatic scientists to review the information from this

event was Dr. Judy St. Leger, DVM, Dipl. American College of Veterinary Pathology,
Vice President for Research and Science, SeaWorld Parks and Entertainment. Dr. St.
Leger authored a report on April 27, 2015, which is attached as Exhibit D. Among the
pertinent analysis contained within Dr. St. Legers report are the following findings and
conclusions:

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1.

Trichlorofon treatment was indicated and appropriate.

2.

Trichlorofon package contained 100% hydroquinone.

3.

The specimens died from acute toxicity.

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4.

3.14

Hydroquinone caused this tragic event.

In addition to the report from Dr. St. Leger, TSA also had Dr. Brent

Whitaker, M.S., D.V.M., Vice President, Biological Programs, National Aquarium, review
the case. Dr. Whitaker authored a report on May 1, 2015, which is attached as Exhibit
E hereto. Notably, Dr. Whitaker reached the same conclusion as Dr. St Leger the
incident was the result of the inadvertent introduction of hydroquinone to the MS rather
than the intended and indicated therapeutic product, trichlorfon:

3.15

The pathology reports prepared by Dr. Denise Imai, DVM, Dipl. American

College of Veterinary Pathologists, DMI, referenced in Dr. St. Legers and Dr.
Whitakers reports are attached as Exhibit F.

The Summit Technologies report,

prepared by Dr. Mo Osman and referenced in Dr. St. Legers and Dr. Whitakers

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reports, is attached as Exhibit G.


3.16

The reports from Dr. St. Leger and Dr. Whitaker make it clear that the

death of 389 aquatic specimens at TSA was the result of introducing a highly toxic
chemical hydroquinone into the MS. The reports further establish that not only was
trichlorofon appropriate to treat the MS at TSA but also establishes that TSA followed
proper procedures and protocols in administering the treatment.
I.

RESULTS OF THE TRICHLOROFON TREATMENT


3.17

As a result of the mislabeled container of trichlorfon provided to TSA by

Fishman, which actually contained highly toxic hydroquinone, TSAs main system lost
nearly its entire population, consisting of approximately 389 aquatic specimens. Among
the unique specimens lost in this tragic event were some of TSAs most beloved and
treasured creatures, including but not limited to:
Neville Roundbottom, a balloonfish;

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Hans, a sand tiger shark;

Cecil, a nurse shark;


Curly, a nurse shark;
Wolfgang, a nurse shark;
Hoover, a nurse shark;

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Sybil, a scamp grouper.

Houdini, a green moray eel;


Scooter, a green moray eel;
Russell, a green moray eel; and

Jaws, a Warsaw grouper.

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3.18

Both Hans, the sand tiger shark, and Jaws, the Warsaw grouper, are

protected species of aquatic life, making the loss of these beloved creatures even more
devastating. Photos showing some of the creatures lost as a result of this tragic event
are attached as Exhibit H.
3.19

The loss of aquatic life at Texas State Aquarium was so severe and

devastating that it received extensive public media coverage and has made national
news and headlines.
J.

INVESTIGATION REVEALS THAT FISHMAN HAD PRIOR KNOWLEDGE OF


OTHER INCIDENTS INVOLVING THE SAME BATCH OF TRICHLOROFON
3.20

Since the tragic loss of aquatic life at TSA, Defendant David Fishman, on

behalf of Fishman, has made representations to the press that his company had never
had anything like this happen before in its 28-year existence. See Exhibit J, Chemical
company responds to Texas State Aquarium fish kill, by Caroline Flores, April 22,
2015.
3.21

However, following the tragic death of the 389 aquatic specimens in TSAs

MS and the extensive public media coverage of the incident, TSA has become aware of
at least one other aquaculture facility, Albuquerque Biopark Aquarium, in the United
States that has experienced the loss of marine life from the use of the same batch of
trichlorfon from Fishman. Albuquerque Biopark Aquarium also had testing conducted
and discovered similar results. In fact, Albuquerque Biopark Aquarium has informed
TSA that they too had the trichlorfon batch analyzed by an independent lab and learned
that hydroquinone was the actual chemical in the tricholorfon batch received by
Fishman. As the following analysis shows, Albuquerque Biopark Aquarium submitted a
sample of white powder IDd as Trichlorfon from the same batch that Fishman

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provided to TSA which was determined to be 100 percent hydroquinone:

See Exhibit I, Albuquerque Biopark Lab Analysis.


3.22

TSA has also learned from Albuquerque Biopark Aquarium that the

incident experienced at their facility occurred in September of 2014 and that they
informed Fishman about their tragic experience well before TSA placed its order for
tricholorfon.

Fishman was aware of this very serious and lethal issue at least six

months prior to TSA placing an order with Fishman for trichlorfon.


IV. CAUSES OF ACTION AGAINST DEFENDANTS
4.1

Plaintiff realleges and incorporates by reference the allegations and facts

stated in paragraphs 3.1 through 3.22.


A.

BREACH OF CONTRACT
4.2

On or about April 8, 2015, TSA entered into a valid and enforceable oral

contract with Fishman that was performable within one year. By this contract, the parties
agreed that TSA would pay the sum of $272.65 and that Fishman would provide one (1)
kilogram of trichlorofon to TSA.
4.3

TSA fully performed its contractual obligations and paid Fishman the sum

of $272.65.

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4.4

Fishman breached the contract by providing a product that was not

trichlorofon but instead provided a highly toxic and carcinogenic chemical


hydroquinone.
4.5

Fishmans breach caused injury to TSA, which resulted in a massive loss

of marine life as described in detail above. Fishmans breach has resulted in the loss of
rare and valuable aquatic creatures, the past and future loss of revenue, has already
damaged the reputation of Texas State Aquarium, and could cause Texas State
Aquarium further damage in the future but the full extent of the damage is not yet
known.
4.6

Attorney fees. TSA is entitled to recover reasonable and necessary

attorney fees incurred in brining this action under the Texas Civil Practice & Remedies
Code. Any notice requirements under this provision have been excused and/or waived.
B.

NEGLIGENCE OF DEFENDANTS
4.7

Fishman committed unreasonable acts of omission and commission,

which, collectively and severally, constitute negligence. Such negligence was a direct,
producing and proximate cause of the incident and all of TSAs injuries and damages.
4.8

Among other acts of negligence, Fishman was negligent in at least the

following regards:
a.

failing to adequately test the batch of trichlorfon to ensure it was, in fact,


trichlorfon;

b.

failing to properly label its products specifically trichlorfon;

c.

selling a harmful chemical hydroquinone;

d.

selling a harmful chemical labeled as something else;

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e.

failing to institute, execute and maintain adequate quality control and


quality assurance processes and procedures;

f.

failing to inspect the batch of trichlorfon after learning it had caused the
loss of marine life;

g.

failing to adequately respond to information placing Fishman on notice that


it was selling a mislabeled and harmful product;

h.

failing to timely remove a mislabeled and harmful product from its


inventory after being put on notice; and

i.

other acts and/or omissions constituting negligence that may be


discovered as the case progresses.

4.9

Based on information and belief, Fishman imports its products

specifically trichlorfon from China. Fishman has been negligent as a foreign importer
and seller of trichlorfon (importers and sellers stand in the shoes of extra-jurisdictional
foreign fabricating manufacturers). Importers and others who qualify as foreign
fabricating manufacturers must assure quality control and inspect foreign manufactured
products before they are distributed in the US, and Fishman negligently failed in this
duty. An importer and a foreign fabricating manufacturer must conduct a review of
trichlorofons chemical qualities to ensure that it is not a toxic substance such as
hydroquinone, and Fishman negligently failed in this duty. An importer and a foreign
fabricating manufacturer must test imported products to ensure their quality, and
Fishman negligently failed in this duty.

An importer and a foreign fabricating

manufacturer must institute quality control measures at storage locations and


throughout the domestic distribution process, and Fishman negligently failed in this
duty.

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4.10

Fishmans negligence was a proximate cause of the incident made the

basis of this suit, the catastrophic loss of marine life at TSA, and the damages sustained
by TSA.
4.11

Each of the above described failures separately and when taken together,

rendered the trichlorfon sold by Fishman as unreasonably dangerous and unsafe for
distribution.
C.

GROSS NEGLIGENCE
4.12

Plaintiffs injury resulted from Fishmans gross negligence, which entitles

plaintiff to exemplary damages under Texas Civil Practice & Remedies Code section
41.003(a).
4.13

Specifically, Fishmans conduct of selling a highly toxic and carcinogenic

chemical, hydroquinone, as trichlorfon involved an extreme degree of risk, considering


the probability and magnitude of potential harm, and Fishman had actual awareness of
the risk but proceeded with conscious indifference to the rights, safety, or welfare of
others. Texas Civil Practice & Remedies Code section 41.001(11).
D.

BREACH OF IMPLIED WARRANTIES


4.14

At all times relevant to the complaint, Fishman was a merchant in the

business of supplying goods, namely aquatic pharmaceuticals.


4.15

The subject batch of trichlorfon was a good and/or product sold for

consumer usage, and it was purchased by TSA to treat a specific condition as


described in section 3 above.

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4.16

Fishman breached the implied warranties of merchantability and fitness for

a particular purpose in that the trichlorfon was actually a highly toxic and carcinogenic
product hydroquinone.
4.17

Fishman additionally breached the implied warranties of merchantability

and fitness for a particular purpose in that the trichlorfon was not fit for ordinary use or
for the intended use for which it was purchased, including for each and every reason set
forth in Section 4.8 above.
4.18

These breaches of implied warranty were a proximate cause of the

incident made the basis of this suit and the resulting injuries and damages to TSA.
4.19

Any notice required has been provided as required by law, or is otherwise

waived or excused.
V. COMPENSATORY DAMAGES
5.1

As a producing, direct and proximate result of the incident, injuries, and

damages for which Defendants are liable, the Plaintiff seeks and is entitled to general,
special, economic and noneconomic, as applicable to the Plaintiff, in an amount in
excess of the minimum jurisdictional limits of the court, as determined to be just and fair
by the jury. Such damages include, but are not necessarily limited to:
a.

Costs to replace marine life;

b.

Past loss of revenue;

c.

Future loss of revenue;

d.

Damage to reputation in the past;

e.

Future damage to reputation;

f.

Prejudgment interest;

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g.

Post-judgment interest;

h.

Reasonable attorneys fee; and

i.

An order permanently enjoining Fishman from selling Tricholrfon,


specifically batch number 20130924.
VI. PRE-JUDGMENT AND POST-JUDGMENT INTEREST

6.1

Plaintiffs seek pre-judgment and post-judgment interest as allowed by law.


VII. JURY DEMAND

7.1

Plaintiffs respectfully request a trial by jury.


PRAYER

WHEREFORE, Plaintiff prays that this cause be set for trial before a jury, and
that Plaintiff recover judgment of and from Defendants for actual and exemplary
damages in such amount as the evidence may show and the jury may determine to be
proper, together with prejudgment interest, post-judgment interest, reasonable
attorneys fees, costs of court, and such other and further relief to which it may show
itself to be justly entitled.
Respectfully submitted,
By:

/s/ Craig M. Sico


Craig M. Sico
State Bar No. 18339850
Federal I.D. No. 13540
SICO, WHITE, HOELSCHER, HARRIS
& BRAUGH, L.L.P
900 Frost Bank Plaza
802 N. Carancahua
Corpus Christi, Texas 78401
Telephone: 361-653-3300
Facsimile: 361-653-3333
ATTORNEY-IN-CHARGE FOR PLAINTIFFS

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OF COUNSEL:
Roger S. Braugh, Jr.
State Bar No. 00796244
Federal I.D. No. 21326
Jeffrey H. Richter
State Bar No. 24061614
Federal I.D. No. 1794395
SICO, WHITE, HOELSCHER, HARRIS
& BRAUGH, L.L.P.
900 Frost Bank Plaza
802 N. Carancahua
Corpus Christi, Texas 78401
Telephone: 361-653-3300
Facsimile: 361-653-3333

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