Federal Court in Kentucky Permits Product Liability Lawsuit to Move Forward

April 8, 2014

In Manning v. Arch Wood Protection, Inc., a federal district court in Kentucky denied the defendant's motion to dismiss and allowed a product liability lawsuit to move forward.

electric-caos-1277648-m.jpgFred Manning had worked as a line mechanic on a line crew for Kentucky Power Company from 1990 until 2013. During that time, Manning claimed to have been exposed to toxic levels of arsenic that were contained in chromated copper arsenate, which is a substance that was used to preserve the wood in utility poles and cross-arms. This exposure allegedly took place while Manning handled, sawed, and drilled wood treated with chromated copper arsenate as part of his employment duties. Manning claimed that as a result, he had been poisoned and suffered resulting health problems.

Manning alleged that the defendant knew of the health hazards caused by exposure to chromated copper arsenate, but not only failed to warn of its danger, but also deceptively persuaded the Environmental Protection Agency to eliminate the proposed mandatory warning labels for wood treated by chromated copper arsenate. Moreover, despite knowing the hazards of exposure, the defendant allegedly claimed that treated wood could be handled in the same way as untreated wood. Manning claimed that the defendant knew, or should have known, that the wood's hazards would result in Manning's injury, as well as his wife's deprivation of the benefits of their relationship.

Arch Wood Protection filed a motion to dismiss the complaint, claiming that the complaint did not allege sufficient facts to state a claim of relief that was plausible on its face. The federal court considered each claim to see whether it could withstand the motion to dismiss. First it considered whether Manning had adequately alleged a failure to warn of the product's danger. To do so, Manning needed to have asserted sufficient allegations to allow at least a reasonable inference that the defendant made, sold, or distributed the product that caused his injury.

In the complaint, Manning alleged that the defendant manufactured the chromated copper arsenate, that it sold the chromated copper arsenate to Manning's employer, that it took place during the time Manning worked on the line crew, that Manning was poisoned by exposure, and that Manning was diagnosed with adverse health effects consistent with exposure to arsenic. The federal court found that these facts were sufficient enough to withstand the motion to dismiss.

The court then looked at the defendant's argument that Manning's complaint should be dismissed because the defendant never manufactured the wood that Manning used. However, the court noted that it was enough that the chromated copper arsenate that treated the wood could have caused Manning's illness.

Finally, the court rejected the defendant's argument that the complaint should be dismissed because the defendant had no duty to warn the end-user of potential risks associated with products treated with chromated copper arsenate. The court stated that similar claims had not been dismissed in the past because they had established a reasonable expectation that the discovery period would reveal evidence of the requisite evidence. The court further noted that Manning had met the standards under Kentucky law for alleging facts that a component part was unreasonably dangerous and that defendant had failed to warn. As Manning had pled sufficient facts, the court denied the defendant's motion to dismiss. The case will now move into the discovery phase, where the defendant may try again to dismiss it through a motion for summary judgment.

Miller & Falkner is an Indiana and Kentucky plaintiffs law firm serving residents of Kentucky and Indiana. Located in Louisville, Kentucky, the firm provides representation in the areas of personal injury and employment law. If you need a Kentucky personal injury attorney, contact us today for a free consultation.

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