Alarcon v. Alcolac Inc.

488 S.W.3d 813, 2016 Tex. App. LEXIS 3157, 2016 WL 1238182
CourtCourt of Appeals of Texas
DecidedMarch 29, 2016
DocketNO. 14-14-00377-CV
StatusPublished
Cited by9 cases

This text of 488 S.W.3d 813 (Alarcon v. Alcolac Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alarcon v. Alcolac Inc., 488 S.W.3d 813, 2016 Tex. App. LEXIS 3157, 2016 WL 1238182 (Tex. Ct. App. 2016).

Opinion

OPINION

Ken Wise, Justice

A Gulf War veteran sued a chemical manufacturer, alleging that during the Gulf War he suffered personal injuries as a result of exposure to mustard gas manufactured with a chemical precürsbr supplied by the- manufacturer. In response, the manufacturer filed a no-evidence summary judgment motion, which the trial court granted.’ On appeal, the primary issue concerns whether the veteran presented more than a scintilla of admissible evidence that the manufacturer’s chemical precursor was used in the mustard' gas that allegedly injured him. In' a cross-issue, the manufacturer contends that the trial court erred in overruling’ its objections to the veteran’s evidence. For the reasons explained below, we affirm.

Factual BACKGROUND

Alcolac Inc., -a Georgia chemical company, manufactured the chemical thiodiglycol (TDG). Alcolac International, Inc., a Baltimore company and wholly owned subsidiary of Alcolac, exported Alcolac’s TDG under the brand name “Kromfax.”1 TDG is used commercially in textile and leather-dyeing processes and in the manufacture of ink. . TDG can also be used as the primary chemical precursor in the production of the blister agent sulfur mustard, a chemical weapon commonly known as mustard gas.

During the eight-year Iran-Iraq War, which ended in 1988, Iraq used several types of chemical'weapons against its enemy Iran, including mustard gas. Mustard gas can be made by using one ton of TDG for every ton.of mustard agent.manufactured.

[815]*815In 1987 and 1988, Special Agent Daniel Bass, a criminal investigator for the United States Customs Service in Baltimore,, began investigating violations of federal law and regulations relating to exports illegally shipped to certain countries, including Iran and Iraq. In the course of Bass’s investigation, he discovered a violation based on a shipment of Alcolac TDG to Iran, Bass then ordered the seizure of Alcolac’s documents to identify any and all TDG that may have arrived in Iran, or Iraq. Because Alcolac’s record keeping was “pretty bad,” Bass decided to seize all the documents at Alcolac’s offices so that he could personally examine Alcolac’s invoices and shipping documents.

According to Bass, his review of the documents revealed that Alcolac engaged in four transactions in which its TDG was purchased by Nu Kraft Mercantile Corp., a company located in Brooklyn, New York, and illegally diverted to Iraq. As Bass testified before Congress, in numerous affidavits, and' in this case, the four shipments were: (1) a shipment in October 1987 of 138 U.S. tons; (2) a shipment in January 1988 of 138 U.S. tons;. (3) a shipment on February 4,1988 of 131 U.S. tons; and (4) a shipment on February 20,1988 of 131 U.S. tons,

Nu Kraft representatives, -along with Frans Van Anraat, a Dutch national, were involved in making purchases and exports of TDG- on behalf of the Iraqi government.Bass was later able to confirm the four shipments of Alcolac TDG and the tonnages when he obtained documents that the Swiss government had seized from Van Anraat’s residence. Bass believed that, in total, 538 U.S. tons (or 490 metric tons, the measurement Iraq used) reached Iraq.

In 1988, the United States Attorney’s Office filed a charge against Alcolac International, Inc., alleging that the company:

Sold to Colimex GmbH & Co. KG approximately 120 tons of thiodiglycol, a . chemical that' is subject to the Export Administration Act and Regulations, with knowledge or reason to know that ' the ultimate destination listed on a Ship- ‘ pet’s Export Declaration filed with the United States Customs Service in connection with the sale was not the intended destination, and in so doing facilitated the reexport of thiodiglycol to Pakistan and Iran.

Alcolac, International, Inc. pleaded guilty to participating in the single shipment that was diverted to Pakistan or Iran.2

The United States also indicted both Van Anraat and his associate, Charles Ta-naka, a Japanese national, for multiple violations of the Export Administration Act, making false statements to the U.S. Customs Service and Department of Commerce, and money laundering. At Tana-ka’s re-arraignment hearing to enter a guilty, plea, he confirmed Bass’s conclusions that through himself, Van Anraat, and Van Anraat’s business entity, Companies, Inc., Iraq obtained four shipments of Alcolac TDG;3.

Van Anraat had begun using Companies, Inc. in 1984 to procure chemicals for Iraq. From 1984 to 1986,.- Companies, Inc., through Van Anraat and Tanaka,' arranged for fifteen shipments of TDG from Japanese chemical companies, ranging from 16 [816]*816to 51 metric tons each, totaling at least 275 metric tons.' In the summer of 1987, Van Anraat asked Tanaka to attempt to purchase TD.G in the United States. Tanaka arranged for two additional shipments of TDG from Technalloy out of South Carolina totaling 234 metric tons.4 Shortly after that,. Nu Kraft and Companies, Inc. began arranging the four shipments of Al-colac TDG.

On August 2, 1990, the country of Iraq, led by Saddam Hussein, invaded Kuwait, a sovereign Arab emirate. In condemnation of that action, the United Nations authorized a coalition force led by the United States to liberate Kuwait. The ensuing conflict took place between August, 1990 and February 1991 (the Gulf War). United States armed forces took part in military campaigns known as Operation Desert Shield and Operation Desert Storm. During the Gulf War, Hussein’s military employed various types of chemical-weapons that were either deployed or detonated in the region, inclüding mustard gas.

ProceduRAl Background

In 1994, Gulf War 'veterans sued Alcolac, Alcolac International, Inc., Rhodia Inc., and numerous other defendants, alleging that they suffered personal injuriés as a result of exposure to the defendants’ “chemical and biological reagents and their component parts” used during the Gulf War. Appellant, Dr. Victor Alarcon (Victor), intervened in the lawsuit in 2006. Victor, a United States Army veteran, alleged that he was exposed to mustard gas while serving in Iraq in 1991. According to Victor, Alcolac and its successor, Rhodia (collectively, Alcolac), manufactured the TDG used by Saddam Hussein’s military to make the mustard gas.5

In 2011, Alcolac filed a no-evidence summary judgment motion on the specific causation element of Victor’s negligence and strict liability claims. Alcolac asserted that Victor- “has no competent evidence that mustard gas manufactured with Defendants’ [TDG] specifically caused his damages.”

Victor filed an initial response and several" supplemental responses attaching hundreds of pages of exhibits. Victor argued that he had presented more than a scintilla of evidence that on February 25, 1991, he suffered serious and irreparable injuries as a result of exposure to mustard gas manufactured from TDG supplied by Alcolac while he was stationed as a combat field surgeon near Nasiriyah, Iraq.

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488 S.W.3d 813, 2016 Tex. App. LEXIS 3157, 2016 WL 1238182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alarcon-v-alcolac-inc-texapp-2016.