Date: 07-12-2013

Case Style: Richard Cotner v. 3m Company

Case Number: CJ-2012-4292

Judge: Barbara G. Swinton

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: L. Ray Maples for Richard and Marily Cotner

Defendant's Attorney: Vani Rani Singhal for 3m Co.

Murray Abowitz and Kayce L. Gisinger for Tuttle Lumber Company, Inc., et al.

Linda G. Alexander for Bridgestone Americas Tire Operations Llc,

Andrew M. Bowman for BASF Corporation D/B/A BASF Construction Chemicals LLC,

Brandon L. Buchanan for Georgia-pacific LLC

Michael D. Carter, Calvin G. Sharpe and Catherine Louise Campbell for Welco Manufacturing Co.

Douglas B. Cubberley for Barbour & Short Inc.

J. Christopher Davis for Timberlake Construction Co Inc., et al.

Roberta Browning Fields for Oklahoma Gas And Electric Company A/k/a OGE

Sharla j. Frost for Union Carbide Corporation

Mack J. Morgan, III for Kerr-Mcgee Corporation

Stephen L. Olson for The Goodyear Tire & Rubber Company

John Phillip Parsons for Keeler/dorr Oliver Boiler Company

Rodney Clark Ramsey and Rob Fred Matt Robertson for Oakfabco, Inc. and Barbour & Short, Inc.

James R. Webb for Georgia-Pacific LLC, Maxwell Supply Co., Fred Jones Manufacturing Company, LLC and Fred Jones Enterprises, LLC

Paula Michelle Williams for Wynnewood Energy Company, LLC

Description: Richard and Marilyn Cotner sued 3m Company and others claiming:

1. Plaintiffs are, and at all times herein mentioned have been, residents of the City of New Castle, MeClain County, State of Oklahoma.

2. The damages sought by the Plaintiffs, exclusive of interest and costs, exceeds the jurisdictional amount required under 28 U.S.C. § 1332 for diversity jurisdiction.

3. Defendant 3M COMPANY is a Delaware corporation with its principal place of business at 3M Center, St. Paul, MN 55144-1000 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, The Corporation Company, 1833 S. Morgan Road, Oklahoma City, OK 73128.

4. Defendant AMERICAN PLANT PRODUCTS AND SERVICES, INC. is an Oklahoma corporation that is subject to the jurisdiction of this Court. Defendain may be served with process by sending a copy of the Summons and Petition to its corporate headquarters, do Rodd Moesel, 9200 NW 10th Oklahoma City, OK 73127.

5. Defendant BARBOUR & SHORT, INC. is an Oklahoma corporation that is subject to the jurisdiction of this Court. Defendant maybe served with process by sending a copy of the Summons and Petition to its corporate headquarters, c/o J.S. Barbour, 323 E. Mosier, Norman, OK 73069.

6. Defendant BASF CORPORATION d/b/a BASF CONSTRUCTION CHEMICALS, LLC is a Delaware corporation with its principal place of business at 100 Campus Drive, Florharn, NJ 07932 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, The Corporation Company, 1833 S. Morgan Road, Oklahoma City, OK 73128.

7. Defendant BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC (sued as successor-by-merger to BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC) is a Delaware corporation with its principal place of business at One Bridgestone Park, Nashville, TN 37214 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, National Registered Agents, Inc. of Oklahoma, 115 SW 89th Street, Oklahoma City, OK 731 39-850&

8. Defendant CANTERA CONCRETE COMPANY, LLC is an Oklahoma corporation with its principal place of business at 5601 South 122nd East Ave., Tulsa, OK 74146 and is subject to the jurisdiction of this Court. Defendant may be sewed with process by sending a copy of the Sumiinons and Petition to its registered agent, The Corporation Company, 1833 S. Morgan Road, Oklahoma City, OK 73128.

9. Defendant CONOCOPHILLIPS COMPANY (sued as successor-by-merger to PHILLIPS PETROLEUM COMPANY) is a Texas corporation with its principal place of business at 600 Dairy Ashford, ML 3170, Houston, Texas 77079 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, Corporation Service Company, 115 SW 89th Street, Oklahoma City, OK 73139-8511.

10. Defendant FLINTCO, LLC is an Oklahoma corporation that is subject to the jurisdiction of this Court. Defendant may be sewed with process by sending a copy of the Summons and Petition to its corporate headquarters, do Todd Maxwell, 1624 West 21st Street, Tulsa, OK 74107.

11. Defendant FRED JONES ENTERPRISES, LLC is an Oklahoma corporation with its principal place of business at 9225 Lake Hefner Pkwy, Suite 200, Oklahoma City, OK 73120 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, Gary F. Fuller, 211 N. Robinson Ave., Suite 1000, Oklahoma City, OK 73102.

12. Defendant FRED JONES MANUFACTURING COMPANY, LLC is an Oklahoma corporation with its principal place of business at 9225 Lake Hefner Pkwy, Suite 200, Oklahoma City, OK 73120 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, Gary F. Fuller, 211 N. Robinson Ave., Suite 1000, Oklahoma City, OK 73102.

13. Defendant GEORGIA-PACIFIC LLC, f/k/a GEORGIA-PACIFIC CORPORATION is a Delaware corporation with its principal place of business at 133 Peachtree St. NE, Atlanta, GA 30303 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its regisiered agent, The Corporation Company, 1833 S. Morgan Road, Oklahoma City, OK 73128.

14. Defendant THE GOODYEAR TIRE & RUBBER COMPANY is an Ohio corporation with its principal place of business at 1144 East Market St., Akron, OH 44316 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, Corporation Service Company, 115 SW 89th Street, Oklahoma City, OK 73139-8511.

15. Defendant KEELER!DORR OLIVER BOILER COMPANY is a Delaware corporation that is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, Maron & Marvel, 1300 North Broom Street, P.O. Box 288, Wilmington, DE 19899-0288.

16, Defendant KERR-MCGEE CORPORATION is a Delaware corporation with its principal place of business at P.O. Box 25861 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, The Corporation Company, 1833 S. Morgan Road, Oklahoma City, OK 73128.

17. Defendant LIPPERT BROS, INC. is an Oklahoma corporation that is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its corporate headquarters, do D.E. Lippert, Jr., 2211 E. 1-44 Service Road, Oklahoma City, OK 73136.

18. Defendant MANHATTAN CONSTRUCTION CO. is an Oklahoma corporation with its principal place of business at 5601 South 122nd East Ave., Tulsa, OK 74146 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, Corporation Service Company, The Corporation Company, 1833 S. Morgan Road, Oklahoma City, OK 73128.

19. Defendant MAXWELL SUPPLY CO. is an Oklahoma corporation that is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its corporate headquarters, c/o Charles W. Thomason, 3300 W. Reno, Oklahoma City, OK 73 107.

20. Defendant METROPOLITAN LIFE INSURANCE COMPANY is a New York corporation that is subject to the jurisdiction of this Court. Defendant ma) be served with process by sending a copy of the Summons and Petition to its corporate headquarters, 1095 Avenue of the Americas, New York, NY 10036.

21. Defendant MICHELIN NORTH AMERICA, INC. is a New York corporation with its principal place of business at 1 Parkway South, Greenville, SC 29602 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, The Corporation Company, 1833 S. Morgan Road, Oklahoma City, OK 73128.

22. Defendant OKLAHOMA GAS AND ELECTRIC COMPANY a/k/a OGE is an Oklahoma corporation that is subject to the jurisdiction of this Court. Defendant may be sewed with process by sending a copy of the Summons and Petition to its corporate headquarters, do Patricia D. Horn, 321 North Harvey, Oklahoma City, OK 73102.

23. Defendant TIMBERLAKE CONSTRUCTION CO., INC. is an Oklahoma corporation with its principal place of business at 7613 N. Classen Blvd., Oklahoma City, OK 73 154 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, Phillips Murrah P.C., 101 N. Robinson, 13th Floor, ATTN: Fred A. Leibrock, Oklahoma City, OK 73102.

24. Defendant TUTTLE LUMBER COMPANY, INC. is an Oklahoma corporation with its principal place of business at 410 W. Bond, Tuttle, OK 73089 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, Henry R. Bockus III, 2115 N. Linn, Oklahoma City, OK 731 07.

25. Defendant UNION CARBIDE CORPORATION is a New York corporation with its principal place of business at 1254 Enclave Parkway, Houston, TX 77077 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Sunmions and Petition to its registered agent, The Corporation Company, 1833 S. Morgan Road, Oklahoma City, OK 73128.

26. Defendant WELCO MANUFACTURING CO. is a Missouri corporation that is subject to the jurisdiction of this Court. Defendant may be sewed with process b sending a copy of the Summons and Petition to its corporate headquarters, 1225 Ozark Street, North Kansas City, MO 64116.

27. Defendant WILLOWBROOK CONSTRUCTION COMPANY, INCORPORATED is an Oklahoma corporation that is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its corporate headquarters, do Robert P. Park, 118 N. Fourth, Chickasha, OK 73018.

28. Defendant WYNNEWOOD ENERGY COMPANY LLC f/k/a GARY- WILLIAMS ENERGY COMPANY is a Delaware corporation with its principal place of business at 2711 Centerville Road, Wilmington, DE 19808 and is subject to the jurisdiction of this Court. Defendant may be sewed with process by sending a copy of the Summons and Petition to its registered agent, Corporation Service Company, The Corporation Company, 1833 S. Morgan Road, Oklahoma City, OK 73128.

29. Defendant WYNNEWOOD REFINING COMPANY LEC f/k/a WYNNE REFINING COMPANY is a Delaware corporation with its principal place of business at 2277 Plaza Drive, Suite 500, Sugar Land, Texas 77479 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, Corporation Service Company, The Corporation Company, 1 833 S. Morgan Road, Oklahoma City, OK 73128.

30. Defendant ZURN INDUSTRIES, LLC (sued individually and as successor-in- interest to ZURN INDUSTRIES, INC.) is a Delaware corporation with its principal place of business at 1801 Pittsburgh Avenue, Erie, PA 16502 and is subject to the jurisdiction of this Court. Defendant may be served with process by sending a copy of the Summons and Petition to its registered agent, The Corporation Company, 1833 S. Morgan Road, Oklahoma City, OK 73128.

31. Each Defendant corporation listed above, or its predecessor-in-interest is, or at times material hereto has been, engaged in the mining, processing, manufacturing, sale and/or distribution of asbestos and asbestos-containing products, machinery and/or equipment requiring or calling for the use of asbestos and/or asbestos-containing products.

32. Each of the Defendants, at all times pertinent hereto, were and/or are doing business in the State of Oklahoma.

33. Plaintiffs will show that, Plaintiff RICHARD COTNER worked as a cement finisher and laborer his entire career. From approximately 1969-1979, Plaintiff RICHARD COTNER worked for his father’s company in and around Oklahoma City, Oklahoma. From approximately 1979-1984, Plaintiff RICHARD COTNER worked as a self-employed cement finisher and laborer in and around Oklahoma City, Oklahoma. Plaintiff RICHARD COTNER also built a pump house on his property in the early I 970s, and in approximately 1975, he assisted a colleague with the construction of his home.

34. During the above mentioned years, Plaintiff RICHARD COTNER worked with and/or was exposed to asbestos and/or asbestos-containing products, machinery and/or equipment requiring or calling for the use of asbestos and/or asbestos-containing products. Plaintiffs will show that Plaintiff RICHARD COTNER was exposed, on numerous occasions, to asbestos-containing products, machinery and/or equipment manufactured and/or sold by Defendants: 3M COMPANY (as a Premise defendant); AMERICAN PLANT PRODUCTS AND SERVICES, iNC. “as a Supplier defendant,); BARBOUR & SHORT, INC. ‘as a Contractor defendant,); BASF CORPORATION d/b/a BASF CONSTRUCTION CHEMICALS, LLC Uör Master Plate Floor Hardners); BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC (sued as successor-by-merger to BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC) (as a Premise defendant); CANTERA CONCRETE COMPANY, LLC (ac a Contractor defendant,); CONOCOPHILLIPS COMPANY (sued as successor-by-merger to PHILLIPS PETROLEUM COMPANY) (as a Premise defendant); FLINTCO, LLC (as a Contractor defendant,); FRED JONES ENTERPRISES, LLC (as a Premise defendant); FRED JONES MANUFACTURING COMPANY, LLC (as a Premise defendant); GEORGIA-PACIFIC LLC, f/k/a GEORGIA-PACIFIC CORPORATION (for Georgia-Pacific Joint Compounds); THE GOODYEAR TiRE & RUBBER COMPANY (as a Premise defendant); KEELER!DORR OLIVER BOILER COMPANY (for Keeler Boilers); KERR-MCGEE CORPORATION (as a Premise defendant,); LIPPERT BROS, INC. (as a Contractor defendant); MANHATTAN CONSTRUCTION CO. (as a Contractor defendant); MAXWELL SUPPLY CO. (as a Supplier defendant); METROPOLITAN LIFE INSURANCE COMPANY (as a Conspiracy defendant); MICHELIN NORTH AMERICA, INC. (as a Premise defendant,); OKLAHOMA GAS AND ELECTRIC COMPANY a/k/a OGE (as a Premise defendant); TIMBERLAKE CONSTRUCTION CO., INC. (as a Contractor defendant,); TUTTLE LUMBER COMPANY, INC. (a9 a Supplier defendant,); UNION CARBIDE CORPORATION (as a Supplier of asbestos fibers); WELCO MANUFACTURING CO. (for Welcote Joint Compound); WILLOWBROOK CONSTRUCTION COMPANY, JNCORPORATED (as a Contractor defendant); WYNNE WOOD ENERGY COMPANY LLC f/Ida GARY-WILLIAMS ENERGY COMPANY (as a Premise defendant); WYNNEWOOD REFINING COMPANY LJLC f/k/a WThNE REFINING COMPANY (as a Premise defendant) and ZURN INDLSTRIES, LLC (sued individually and as successor-in-interest to ZURN INDUSTRIES, INC.) Ubr Zurn Boilers).

35. Plaintiffs allege that RICHARD COTNER was regularly and repeatedly exposed to asbestos and/or asbestos-containing products, machinery and/or equipment requiring or calling for the use of asbestos and/or asbestos-containing products during his work in the construction industry. Each and every exposure to such products caused, or contributed to, Plaintiff RICHARD COTNER’s asbestos-related malignant mesothelioma which he was diagnosed with on or about May 9, 2012.

36. Plaintiff RICHARD COTNER contracted asbestos-related malignant mesothelioma through the inhalation of the asbestos fibers contained iii the products manufactured, sold, and/or distributed by each of the Defendants.

37. Venue is proper in Oklahoma County, Oklahoma pursuant to Okla. Stat. tit. 12 0.S. § 137.

II.

FIRST CLAIM FOR RELIEF

COMES NOW the Plaintiffs, RICHARD COTNER and spouse MARILYN COTNER, and for their first claim for relief against said Defendants, state and allege as follows:

38. Plaintiff RICHARD COTNER’s asbestos-related malignant mcsothelioma is a dh-ect and proximate result of the negligence and gross negligence of each Defendant and/or its predecessor-in-interest in that said entities produced, sold, distributed and/or otherwise put into the stream of commerce, asbestos, asbestos-containing products, machinery and/or equipment requiring or calling for the use of asbestos and/or asbestos-containing products, which the Defendants knew, or in the exercise of ordinary care, should have known were deleterious and highly harmful to Plaintiff RICHARD COTNER’s health and well-being. The Defendants were negligent in one, some and/or all of the following respects, among others, same being the proximate cause of Plaintiff RICHARD COTNER’s asbestos-related malignant niesothelioma:

(a) in failing to timely and adequately warn Plaintiff RICHARD COTNER of the dangerous characteristics and serious health hazards associated with exposure to asbestos, asbestos-containing products, and/or machinery requiring or calling for the use of asbestos and/or asbestos-containing products;

(b) in failing to provide Plaintiff RICHARD COTNER with information as to what would be reasonably safe and sufficient wearing apparel and proper protective equipment and appliances, if in truth there were any, to protect Plaintiff RICHARD COTNER from being harmed and disabled by exposure to asbestos, asbestos-containing products, and/or machinery requiring or calling for the use of asbestos and/or asbestos-containing products;

(c) in failing to place timely and adequate warnings on the containers of said asbestos, or asbestos-containing products, or on the asbestos-containing products themselves, and/or machinery requiring or calling for the use of asbestos and/or asbestos-containing products to warn of the dangers to health of coming into contact with said asbestos, asbestos-containing products, machinery and/or equipment;

(d) in failing to take reasonable precautions or exercise reasonable care to publish, adopt and enforce a safety plan and/or safe method of handling and installing asbestos and/or asbestos-containing products, or utilizing the machinery requiring or calling for the use of asbestos and/or asbestos-containing products in a safe manner;

(e) in failing to develop and utilize a substitute material to eliminate asbestos fibers in the asbestos-containing products, and/or the machinery requiring or calling for the use of asbestos and/or asbestos-containing products;

(f) in failing to properly design and manufacture asbestos, asbestos-containing products, and/or machinery requiring or calling for the use of asbestos and/or asbestos-containing products for safe use under conditions of use that were reasonably anticipated;

(g) in failing to properly test said asbestos or asbestos-containing products or machinery before they were released for consumer use; and

(h) in failing to recall and/or remove from the stream of commerce said asbestos or asbestos-containing products or machinery or machinery requiring or calling for the use of asbestos and/or asbestos-containing products despite knowledge of the unsafe and dangerous nature of such products or machinery.

III.

SECOND CLAIM FOR RELIEF

COMES NOW the Plaintiffs, RICHARD COTNER and spouse MARILYN COTNER, and for their second claim for relief against Defendants, reallege and restate all the allegations contained in the previous paragraphs, and further state and allege as follows:

39, Plaintiff RICHARD COTNER was exposed to asbestos, asbestos-containing products, machinery and/or equipment requiring or calling for the use of asbestos and/or asbestos-containing products that were manufactured, sold and/or distributed by the Defendants and/or their predecessors-in-interest for use in commercial, residential and industrial operations. Plaintiffs would show that the defective condition of the products rendered such products unreasonably dangerous, and that the asbestos, asbestos-containing products, machinery and/or equipment were in this defective condition at the time they left the hands of Defendants. Such condition also resulted in a breach of warranty owed to Plaintiff RICHARD COTNER, for which the claim is being made.

40. These Defendants were engaged in the business of manufacturing, selling and/or distributing asbestos, asbestos-containing products, machinery and/or equipment requiring or calling for asbestos or asbestos-containing products, and these asbestos-containing products, machinery and/or equipment, without substantial change in the condition in which they were sold, were a proximate cause of Plaintiff RICHARD COTNER’s asbestos-re[ated malignant mesothelioma.

41. Defendants knew that the asbestos, asbestos-containing products, machinery and/or equipment would be used without inspection for defects and, by placing them on the market, represented that they would safely do the job for which they were intended, which must necessarily include safe manipulation and/or installation of the asbestos-containing products and/or operation, maintenance and/or repair of the machinery requiring or calling for the use of asbestos and/or asbestos-containing products.

42. Plaintiff RICHARD COTNER was unaware of the hazards and defects in the asbestos and asbestos-containing products of the Defendants which made them unsafe for purposes of manipulation and/or installation. Similarly, Plaintiff RICHARD COTNER was unaware of the hazards and defects in the machinery requiring or calling for the use of asbestos and/or asbestos-containing materials.

43. During the periods that Plaintiff RICHARD COTNER was exposed to the asbestos, asbestos-containing products, machinery and/or equipment of the Defendants, the asbestos, asbestos-containing products, machinery and/or equipment were being utilized in a manner which was intended by Defendants.

IV.

THIRD CLAIM FOR RELIEF

COMES NOW the Plaintiffs, RICHARD COTNER and spouse MARILYN COTNER, and for their third claim for relief against Defendants, reallege and restate all the allegations contained in the previous paragraphs, and further state and allege as follows:

44. The actions and inactions of Defendants and their predecessors-in-interest, as specifically alleged herein above, whether taken separately or together, were of such a character as to constitute a pattern or practice of intentional wrongful conduct and/or malice resulting in damages and Plaintiff RICHARD COTNER’s asbestos-related illness. More specifically, these Defendants and their predecessors-in-interest, consciously and/or deliberately engaged in oppression, willfulness, wantonness and/or malice with regard to Plaintiff RICHARD COTNER and should be held liable in punitive and exemplary damages to Plaintiffs.

V.

FOURTH CLAIM FOR RELIEF

COMES NOW the Plaintiffs, RICHARD COTNER and spouse MARILYN COTNER, and for their fourth claim for relief against Defendants, reallege and restate all the allegations contained in the previous paragraphs, and further state and allege as follows:

48. The actions and inactions of Defendants and their predecessors-in-interest, as specifically alleged herein above, whether taken separately or together, were of such a character as to constitute a pattern or practice of intentional wrongful conduct and/or malice resulting in damages and Plaintiff RICHARD COTNER’s asbestos-related malignant mesothelioma. Defendants’ conduct was specifically intended by Defendants to cause substantial injury to Plaintiff RICHARD COTNER. or was carried out by Defendants with a flagrant disregard for the rights of others and with actual awareness on the part of Defendants that the conduct would, in reasonable probability, result in human deaths and/or great bodily harm. More specifically, these Defendants and their predecessors-in-interest, consciously and/or deliberately engaged in oppression, willfulness, wantonness and/or malice with regard to Plaintiff RICHARD COTNER and should be held liable in punitive and exemplary damages to Plaintiffs.

VI.

FIFTH CLAIM FOR RELIEF (AGAINST DEFENDANTS FOR PREMISES LIABILITY)

COME NOW the Plaintiffs RICHARD COTNER and spouse MARILYN COTNER, and for their fifth claim for relief, asserted only against Defendants 3M COMPANY; BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC (sued as successor-by-merger to BRIDGESTONE FIRESTONE NORTH AMERICAN TIRE, LLC); CONOCOPHILLIPS COMPANY (sued as successor-by-merger to PHILLIPS PETROLEUM COMPANY); FRED JONES ENTERPRISES, LLC; FRED JONES MANUFACTURING COMPANY, LLC; THE GOODYEAR TIRE & RUBBER COMPANY; KERR-MCGEE CORPORATION; MICHELIN NORTH AMERICA, INC.; OKLAHOMA GAS AND ELECTRIC COMPANY a/ida OGE; WYNNEWOOD ENERGY COMPANY LLC f/k/a GARY- WILLIAMS ENERGY COMPANY; and WYNNEWOOD REFINING COMPANY LLC f/k/a WYNNEWOOD REFINING COMPANY (hereinafter referred to as “Premise Defendants”) state and allege as follows:

49. From the years 1969-1984, Plaintiff RICHARD COTNER worked as a cement finisher and laborer, and during this time, Plaintiff worked at various jobsites, including at Premise Defendants’ facilities, located in and around Oklahoma City, Oklahoma. During this time, Plaintiff RICHARD COTNER was heavily exposed to asbestos from high-temperature insulation, asbestos-containing equipment and/or asbestos-containing products that were used by other men in his vicinity.

50. Plaintiff RICHARD COTNER was never an employee of these Premise Defendants, and at all times when he worked on Premise Defendants’ premises he was the employee of a contractor hired by the Premise Defendants to perform the work. Thus, Plaintiff RICHARD COTNER was an invitee on Premise Defendants’ premises.

51. Plaintiff RICHARD COTNER’s mesothelioma and Plaintiffs’ damages were proximately caused by conduct amounting to negligence and recklessness by Premise Defendants in coimection with RICHARD COTNER’s exposure to asbestos at the Premise Defendants’ facilities due to the hazardous nature of the job sites as a result of ambient asbestos, the danger of which was not known to R1C HARD COTNER and not open and obvious. Thus, Premise Defendants’ premises were not reasonably safe for worker invitees such as RICHARD COTNER.

52. Plaintiffs bring this claim against the Premise Defendants on a theory of premises liability for breach of their non-delegable duty to exercise reasonable care to maintain their premises in a safe condition for workers like RICHARD COTNER. Premise Defendants at all times were aware of the work done by contractors on their premises, including RICHARD COTNER’s work, and the dusty conditions created by the work done by RICHARD COTNER and other workers.

53. Premise Defendants breached their duty of reasonable care as premises owners in one or more of the following respects:

(a) failure to use reasonable care to keep their premises in a reasonably safe condition as workplaces for RICHARD COTNER;

(b) failure to warn RICHARD COTNER about the dangers of asbestos and the asbestos-containing products to which he was exposed;

(c) failure to provide RICHARD COTNER with adequate safet) measures and protection against exposure to asbestos dust at their premises, such as through the provision of a respirator, all despite knowing of the serious risk of harm inherent to asbestos exposure;

(d) failure to take reasonable precautions or exercise reasonable care to publish, adopt and enforce a safety plan or safe method of handling and installing asbestos- containing products which RICHARD COTNER used and to which he was exposed at its premises.

(e) failure to conduct air monitoring to determine the level of asbestos exposure to RICHARD COTNER from the asbestos-containing products which he used in the course of his hands-on work at their premises;

(f) failure to maintain the ambient and environmental conditions of the premises in proper and safe condition, including but not limited to the failure to ensure that work at the job sites adhered to applicable regulations and laws regarding exposure to asbestos;

(g) failure to ensure that RICHARD COTNER was protected from inhalation of asbestos and asbestos fibers from the asbestos-containing products which he used in the course of his work at their premises;

(h) failure to warn RICHARD COTNER about the hazardous nature of the workplaces due to the presence of ambient asbestos fibers;

(i) failure to protect RICHARD COTNER and other workers from the known or foreseeable hazards of asbestos exposure from the asbestos-containing products used at their premises.

54. At the time RICHARD COTNER worked at the Premise Defendants’ facilities, Premise Defendants had actual knowledge of the potential hazards posed by exposure to asbestos-containing products, but Premise Defendants failed to adequately or timely warn RICHARD COTNER about those hazards or ensure that he was protected from those hazards through appropriate safety precautions.

55. During the time when RICHARD COTNER performed work at Premise Defendants’ facilities, Premise Defendants had actual knowledge that asbestos and asbestos- containing products, specifically including equipment and machinery RICHARD COTNER maintained and was exposed to, posed a hazard to human health due to infonnation received from scientific and medical journals articles received by their employees, and from information and documents received from trade associations.

56. In the alternative, Premise Defendants should have known that the asbestos- containing products to which RICHARD COTNER was exposed posed a serious health hazard to him.

57. At the time he worked at Premise Defendants’ facilities, RICHARD COTNER was unaware of the hazards of the asbestos-containing products to which he was exposed, and such hazards were not open and obvious to a worker in the position of RICHARD COTNER. The Premise Defendants’ conduct, as alleged above, was a proximate and substantial contributing cause of RICHARD COTNER’s mesothelioma and Plaintiffs’ damages, and in significant probability the exposure RICHARD COTNER received at the Premise Defendants’ facilities contributed to the cause of his mesothelioma due to the frequency, regularity, and proximity of his exposure to asbestos fiber.

VII.

SIXTH CLAIM FOR RELIEF

COMES NOW the Plaintiffs, RICHARD COTNER and spouse MARILYN COTNER, and for their sixth claim for relief against Defendants, reallege and restate all the allegations contained in the previous paragraphs, and further state and allege as follows:

58. Defendant METROPOLITAN LIFE INSURANCE COMPANY rendered substantial aid and assistance to the manufacturers of asbestos-containing products to which Plaintiff RICHARD COTNER was exposed, and such assistance by Metropolitan Life aided and abetted the negligence and the marketing of unreasonably dangerous asbestos-containing products by such manufacturers which proximately caused Plaintiff RICHARD COTNER’s illness, injuries and disabilities.

59. Defendant, METROPOLITAN LIFE INSURANCE COMPANY, through its Policyholders Service Bureau undertook duties owed by the asbestos-producing Defendants to Plaintiff RICHARD COTNER by the testing of asbestos workers and the conduct of scientific studies. These duties included without limitation, the duty:

(a) to test fully and adequately for health risks concomitant to the normal and intended use of their products; and

(b) to instruct fully and adequately in the uses of their products so as to eliminate or reduce the health hazards concomitant with their normal or intended use.

In undertaking these duties, METROPOLITAN LIFE knew or should have known that it was providing testing services for the ultimate protection of third persons, including Plaintiff RICHARD COTNER.

60. In both conducting said tests and in publishing their alleged results, METROPOLITAN LIFE failed to exercise reasonable care to conduct or publish complete, adequate and accurate tests of the health effects of asbestos. METROPOLITAN LIFE also caused to be published intentionally false, misleading, inaccurate and deceptive information about the health effects of asbestos exposure.

61. Plaintiff RICHARD COTNER unwittingly but justifiably rclied upon the thoroughness of METROPOLITAN LIFE’s tests and information dissemination, the results of which Metropolitan Life published in leading medical journals.

62. As a direct and proximate contributing result of METROPOLITAN LIFE’s failures to conduct or accurately publish adequate tests or disseminate accurate and truthful information, after undertaking to do so; (i) the risk of harm to Plaintiff RICHARD COTNER from asbestos exposure was increased, and (ii) Plaintiff RICHARD COTNER developed asbestos related malignant mesothelioma.

63. In failing to test fully and adequately for the adverse health effects from exposure to asbestos; in delaying the publication of such results; and in falsely editing such results as were obtained; in suppressing relevant medical inquiry and knowledge about those hazards to promote the sale and distribution of asbestos as a harmless product; and in collaborating with the asbestos-producing Defendants materially to understate the hazards of asbestos exposure, all for its own profit and gain, METROPOLITAN LJFE acted recklessly, wantonly, and in calculated disregard for the welfare of the general public, including Plaintiff RICHARD COTNER.

VIII.

SEVENTH CLAIM FOR RELIEF

COMES NOW the Plaintiffs. RICHARD COTNER and spouse MARILYN COTNER, and for their seventh claim for relief against Defendants, reallege and restate al] the allegations contained in the previous paragraphs, and further state and allege as follows:

64. The actions of all Defendants aided, abetted, encouraged, induced or directed the negligent and/or intentional acts of each and every other Defendant.

65. Each of these Defendants knew or should have known that their individual actions would combine to cause the asbestos-related malignant mesothelioma of Plaintiff RICHARD COTNER.

66. The actions of each of the Defendants are a proximate cause of Plaintiff RICHARD COTNER’s asbestos-related mesothelioma. As a result, all Defendants are jointly liable for the damage caused by their combined actions.

IX.

EIGHTH CLAIM FOR RELIEF

COMES NOW the Plaintiffs, RICHARD COTNER and spouse MARILYN COTNER, and for their eighth claim for relief against all Defendants, reallege and reassert all the allegations contained in the previous paragraphs, and further state and allege as follows:

67. At all relevant times, Plaintiff MARILYN COTNER, has been the lawfully wedded spouse of RICHARD COTNER.

68. As the spouse of RICHARD COTNER, Plaintiff MARILYN COTNER, is accustomed to, and did, receive the love and affection and care from RICHARD COTNER and is dependent on him for the necessities of life that he provides. In addition, she is entitled to and did receive the consortium and society of R1CHARI) COTNER and other concomitants of married life.

69. Notwithstanding their duties to Plaintiff MARILYN COTNER, the Defendants did, as a direct and proximate result of the acts and omissions specified above, cause serious and permanent injuries to Plaintiff RICHARD COTNER and thereby interfered with the relationship of Plaintiffs RICHARD COTNER and spouse MARILYN COTNER, as to deprive Plaintiff MARILYN COTNER, of those elements of married life she was and is accustomed to receive. Defendants thus grievously injured and damaged this Plaintiff in those particulars of support, devotion, care, society and consortium which she formerly, prior to the injury of RICHARD COTNER. received and which now, because of the injury, she has lost some and/or all, to the damage of Plaintiff MARILYN COTNER.

x.

DAMAGES

70. The conduct of Defendants, as alleged hereinabove, was a direct, proximate and producing cause of the damages resulting from the asbestos-related lung disease of Plaintiff RICHARD COTNER, and of the following general and special damages, including, but not limited to:

(a) Plaintiff RICHARD COTNER suffers great physical pain and mental anguish;

(b) Plaintiff RiCHARD COTNER is incurring hospital and/or medical and/or pharmaceutical and/or other expenses due to the progressively disabling character of his asbestos-related malignant mesothelioma;

(c) Plaintiff RICHARD COTNER suffers physical impairment due to the disabling character of asbestos-related malignant mesothelioma;

(d) Plaintiff RICHARD COTNER suffers permanent partial disability, and has become permanently disabled due to the progressive character of his asbestos related malignant mesothelioma;

(e) Plaintiff RICHARD COTNER requires medical monitoring to survey progression of his asbestos-related malignant mesothelioma;

(f) Prior to the onset of his symptoms, Plaintiff RICHARD COTNER was extremely active and participated in numerous hobbies and activities, and as a result of his asbestos-related malignant mesothelioma. Plaintiff is prevented from engaging in some of said activities which are normal to him prior to developing symptoms from asbestos-related malignant niesothelioma. Plaintiff had been enjoying the benefits of a full and complete life prior to his diagnosis;

(g) Spouse MARILYN COTNER will suffer for the rest of her and RICHARD COTNER’s life and will continue to suffer loss of consortium, including but not limited to, loss of services, marital relations, society, comfort, companionship, love and affection of Plaintiff RICHARD COTNER, and is suffering severe mental and emotional distress and general nervousness as a result thereof; and

(h) Plaintiffs, RICHARD COTNER and spouse MARILYN COTNER, seek punitive and exemplary damages.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs, RICHARD COTNER and spouse MARiLYN COTNER, demand judgment against the Defendants, and each of them, jointly and severally, for general and special damages in excess of Seventy-Five Thousand Dollars ($75,000.00), for punitive and exemplary damages in excess of Seventy-Five Thousand Dollars ($75,000.00), for their costs expended herein, for prejudgment interest, and post-judgment interest on the judgment at the rate allowed by law, and for such other and further relief, both at law and in equity, to which Plaintiffs may show themselves to be justly entitled.

Outcome: Defendant: American Plant Products And Services Inc Disposed: DISMISSED WITHOUT PREJUDICE, 07/30/2012. Other.

Defendant: Georgia-pacific Llc Pending.

Defendant: Metropolitan Life Insurance Company Pending.

Defendant: Tuttle Lumber Company Inc Pending.

Defendant: Union Carbide Corporation Pending.

Defendant: Welco Manufacturing Co Pending.

Defendant: Wynnewood Energy Company Llc Pending.

Defendant: Cantera Concrete Company Llc Disposed: DISMISSED WITHOUT PREJUDICE, 08/27/2012. Other.

Defendant: Kerr-Mcgee Corporation Disposed: DISMISSED WITHOUT PREJUDICE, 09/27/2012. Other.

Defendant: The Goodyear Tire & Rubber Company Disposed: DISMISSED WITHOUT PREJUDICE, 09/27/2012. Other.

Defendant: Bridgestone Americas Tire Operations Llc Disposed: DISMISSED WITHOUT PREJUDICE, 09/27/2012. Other.

Defendant: Wynnewood Refining Company Llc Disposed: DISMISSED WITHOUT PREJUDICE, 09/28/2012. Other.

Defendant: Conocophillips Company Disposed: DISMISSED WITHOUT PREJUDICE, 09/28/2012. Other.

Defendant: Flintco LLC Disposed: DISMISSED WITHOUT PREJUDICE, 10/01/2012. Other.
Defendant: Manhattan Construction Co Disposed: DISMISSED WITHOUT PREJUDICE, 10/01/2012. Other.

Defendant: Willowbrook Construction Company Incorporated Disposed: DISMISSED WITHOUT PREJUDICE, 10/01/2012. Other.

Defendant: Timberlake Construction Co Inc Disposed: DISMISSED WITHOUT PREJUDICE, 10/01/2012. Other.

Defendant: Michelin North America Inc Disposed: DISMISSED WITHOUT PREJUDICE, 10/02/2012. Other.

Defendant: Oklahoma Gas And Electric Company A/k/a OGE Disposed: DISMISSED WITHOUT PREJUDICE, 10/24/2012. Other.

Defendant: Keeler/dorr Oliver Boiler Company Disposed: DISMISSED WITHOUT PREJUDICE, 11/16/2012. Other.

Defendant: 3m Company Disposed: DISMISSED WITHOUT PREJUDICE, 11/26/2012. Other.

Defendant: BASF Corporation D/B/A BASF Construction Chemicals Llc Disposed: DISMISSED WITHOUT PREJUDICE, 04/02/2013. Other.

Defendant: Fred Jones Enterprises Llc Disposed: DISMISSED WITHOUT PREJUDICE, 05/24/2013. Other.

Defendant: Fred Jones Manufacturing Company Llc Disposed: DISMISSED WITHOUT PREJUDICE, 05/24/2013. Other.

Defendant: Maxwell Supply Co Disposed: DISMISSED WITHOUT PREJUDICE, 05/24/2013. Other.

Defendant: Barbour & Short Inc Disposed: DISMISSED WITHOUT PREJUDICE, 06/19/2013. Other.

Defendant: Lippert Bros Inc Disposed: SUMMARY JUDGEMENT ENTERED, 06/21/2013. Judge.

Defendant: Zurn Industries LLC Disposed: DISMISSED WITHOUT PREJUDICE, 07/09/2013. Other.

Plaintiff's Experts:

Defendant's Experts:

Comments: Editor's Note: Prosecuting an asbestos case can be very very difficult.