IN THE CIRCUIT COURT OF CALHOUN COUNTY, MISSISSIPPI

 

PAULINE TEDFORD, TOMMY TEDFORD

LORA SMITH, JUDY HAIRE, 

HAROLD E. HAIRE, SAMANTHA MIXON,

JOSHUA MIXON, JAMES R. CLARK AND

SANDRA DARLENE
CLARK                                 
                             PLAINTIFFS

VS.                                  
                         
                              CIVIL ACTION
NO. ___________

FRANKLIN CORPORATION,

MID-SOUTH ADHESIVES, INC.,

HASSELL H. FRANKLIN, JOHN LYLES,

DON LIVINGSTON, JEFF CLEMENTS,

JIMMY PUMPHREY,  AND JOHN DOES
1-10                                
         DEFENDANTS

 

      III.  FACTS

A.                 Defendant Franklin Corp. is a furniture
manufacturer.  As part of the manufacturing process, Defendant Franklin
Corp. utilized an adhesive known as Soft Seam Adhesive.

B.                 Defendant Mid-South Adhesives manufactured, placed
into the stream of commerce and sold Soft Seam Adhesive to Franklin
Corp.  The product code for Soft Seam Adhesive sold by Mid-South
Adhesives and utilized by Franklin Corp. included, but is not limited
to, Product Code 6466MSDS.

C.                 Soft Seam Adhesive contains an extremely hazardous
chemical known as propyl bromide (1-bromopropane).  Propyl bromide is a
toxic chemical subject to federal reporting requirements.  Exposure
through inhalation of propyl bromide is known to be an irritant to the
respiratory system.  Adverse health effects through skin and eye
exposure include irritation, rashes, defatting of skin and dermatitis. 
Absorption through the skin is possible, resulting in systemic
effects.  Ingestion of propyl bromide is acutely toxic, and if vomiting
occurs, propyl bromide can be aspirated into the lungs, which can cause
pneumonia and systemic effects.  Prolonged exposure to propyl bromide
can cause adverse effects in the liver, kidney, central nervous system,
reproductive system and respiratory system.  

D.                 At all relevant times stated herein, Plaintiffs were
employed by Defendant Franklin Corp. as workers on the glue line, in the
Poly Plant at Franklin Corp.  

E.                  Plaintiffs were placed in enclosed spray booths
without ventilation, respiratory protection, eye or skin protection, and
were directed by employees and/or agents of Defendant Franklin Corp. to
use Soft Seam Adhesive through a pressurized spray system to apply Soft
Seam Adhesive to foam used in the manufacture of furniture produced and
sold by Franklin Corp.

F.                  On average, Plaintiffs were directly exposed to the
Soft Seam Adhesive in enclosed booths without ventilation, respiratory
protection, eye or skin protection, through the pressurized spray system
for ten (10) to twelve (12) hours per day.

G.                 Plaintiff Tedford was employed at Franklin Corp. in
the glue area from approximately 1999 to April 22, 2004, at which time
she was placed on medical leave.

H.                 Plaintiff Smith was employed at Franklin Corp. in the
glue area from approximately October 2003 to January 27, 2004, at which
time she was placed on medical leave.

I.                    Plaintiff Haire was employed at Franklin Corp. in
the glue area from approximately September 2002 to February 9, 2004, at
which time she was placed on medical leave.

J.                   Plaintiff Mixon was employed at Franklin Corp. in
the glue area from approximately September 2003 to February 14, 2004, at
which time she was placed on medical leave.

K.                Plaintiff Clark was initially employed at Franklin
Corp. in 1980, and was employed as a Superintendent at Franklin Corp. of
the Poly Department in 1997 through November 2003.

L.                  Defendant Franklin was the President and principal
shareholder of Franklin Corp. at all relevant times stated herein.

M.               Defendant Lyles was the Vice-President of Manufacturing
at Franklin Corp. at all relevant times stated herein.

N.                Defendant Livingston was the Executive Vice-President
and Purchasing Manager at Franklin Corp. at all relevant times stated
herein.  

O.                Defendant Clements was a Manager in the Poly
Department, and an employee and/or agent of Defendant Franklin Corp. at
all relevant times stated herein.

P.                  Defendant Pumphrey was a Supervisor in the Poly
Department, and an employee and/or agent of Defendant Franklin Corp. at
all relevant times stated herein.

Q.                Upon information and belief, Defendant Franklin Corp.
was, in 1999, utilizing a latex based spray adhesive on the glue line.

R.                 Upon information and belief, Defendant Franklin Corp.
was approached by an employee and/or agent for Defendant Mid-South
Adhesives in 1999 for the purpose of selling to Defendant Franklin Corp.
its product, Soft Seam Adhesive.  

S.                  Upon information and belief, Defendant Mid-South
Adhesive represented to Defendant Franklin Corp. that the use of its
product, Soft Seam Adhesive, instead of the latex based adhesive, would
reduce the work force required on the glue line by two-thirds (2/3),
resulting in substantial cost savings to Defendant Franklin Corp. 

T.                  Upon information and belief, Defendant Mid-South
Adhesive was fully aware and had actual knowledge of the hazardous
nature of Propyl bromide and of the numerous side effects of exposure to
humans at the time it marketed Soft Seam Adhesive to Defendant Franklin
Corp.

U.                 Upon information and belief, Defendant Mid-South
Adhesive conveyed to Defendant Franklin Corp. and its management,
including but not limited to Defendant Franklin, Lyles, Livingston,
Clements and Pumphrey, of the hazardous nature of Propyl bromide at the
time Defendant Mid-South Adhesives marketed Soft Seam Adhesive to
Defendant Franklin Corp.

V.                 Upon information and belief, Defendant Mid-South
Adhesive conveyed to Defendant Franklin Corp. and its management,
including but not limited to Defendant Franklin, Lyles, Livingston,
Clements, and Pumphrey, the requirement that if used, Soft Seam Adhesive
had to be in an area with adequate ventilation and full respiratory,
skin and eye protection for the persons utilizing it in the
manufacturing process, or exposed to it by proximity to the area where
it was to be utilized.

W.               Upon information and belief, Defendant Franklin Corp.
agreed in 1999 to utilize and did utilize Soft Seam Adhesive purchased
from Mid-South Adhesive for a trial period to determine if the use of
Soft Seam Adhesive could result in a  substantial amount of cost
savings to the company in the production and manufacture of furniture.

X.                 A cost benefit analysis was performed by Engineer
Tracey Smithey for Defendant Franklin Corp. in 1999 during its trial use
of Soft Seam Adhesive on the glue line.  This analysis confirmed that
the Soft Seam Adhesive, containing propyl bromide, and sold by Defendant
Mid-South Adhesive, did in fact result in a huge decrease in labor
required on the glue line which allowed Defendant Franklin Corp. to cut
its work force on the glue line by 2/3 when using the Soft Seam
Adhesive.  The results of this cost benefit analysis were published and
known to all Defendants named herein.

Y.                 During the trial, Defendant Franklin Corp. failed to
provide any ventilation on the glue line, or to provide respiratory,
skin and eye protection to the workers using the Soft Seam Adhesive.

Z.                  During the trial, Defendants failed to warn and
train the workers on the glue line of the dangers associated with propyl
bromide or of the need for adequate ventilation and respiratory, skin
and eye protection.

AA.           During the trial, Defendants failed to provide adequate
protective equipment to the workers on the glue line against  the
dangers associated with propyl bromide, including adequate ventilation
and respiratory, skin and eye protection.

BB.            Thereafter, Defendant Franklin Corp. began purchasing
Soft Seam Adhesive from Defendant Mid-South Adhesive.  A representative
employed by Mid-South Adhesive maintained contact at all relevant times
stated herein with Defendant Franklin Corp., Defendant Franklin, Lyles
and Livingston, providing information on the mechanical requirements for
the pressurized spray system used to apply the Soft Seam Adhesive, its
use and method of application to the foam as an adhesive, as well as
handling and the continued sale and transport of Soft Seam Adhesive from
Defendant Mid-South Adhesive to Defendant Franklin Corp.

CC.           Defendant Franklin Corp. began using the Soft Seam
Adhesive marketed, sold, and placed into the stream of commerce by
Defendant Mid-South Adhesive in the Franklin glue line in 1999.  At
that time, all Defendants named herein were aware of the ventilation,
respiratory, skin and eye protection requirements for the use of Soft
Seam Adhesive, as well as the known harmful effects to humans from
prolonged, unprotected exposure to propyl bromide.

DD.           At the time Defendant Franklin Corp. began using Soft Seam
Adhesive on the glue line, Defendants Franklin Corp., Franklin, Lyles,
Livingston, Clements, Pumphrey and John Does made a conscious,
intentional decision not to provide adequate ventilation, respiratory,
skin and eye protection to the employees of Defendant Franklin Corp.
that were working on the glue line or those employees working near the
glue line, including but not limited to Clark.  This conscious,
intentional decision by these Defendants continued for a period of
approximately five (5) years.

EE.             In 2000, Defendant Livingston was provided with a safety
advisory from Defendant Mid-South Adhesive that the Soft Seam Adhesive
should be ventilated out of the building from the glue line.  Defendant
Livingston consulted with Defendant Franklin about the advisory, and was
instructed by Defendant Franklin that no ventilation system would be
installed due to the cost and expense of installing such a ventilation
system.

FF.             At the time Defendant Franklin Corp. began using Soft
Seam Adhesive on the glue line in 1999, through 2004, Defendant
Mid-South Adhesive had full knowledge that Defendant Franklin Corp. was
using the Soft Seam Adhesive in its manufacturing process without
adequate ventilation, respiratory, skin and eye protection for extreme
periods of exposure to the workers placed on the glue line by Defendant
Franklin Corp.

GG.           Defendant Mid-South Adhesive, through its agents,
employees and representatives, from the date of the initial sale of Soft
Seam Adhesive in 1999 through 2004, personally observed that Defendant
Franklin Corp. was putting its workers on the glue line for work shifts
of ten (10) to twelve (12) hours using the Soft Seam Adhesive without
ventilation, respiratory, skin or eye protection. 

HH.           Defendant Mid-South Adhesive, from 1999 to 2004, had
actual knowledge that Defendant Franklin Corp. was putting workers on
the glue line using Soft Seam Adhesive and directly exposing them and
other employees to propyl bromide without ventilation, respiratory, skin
or eye protection for extreme periods of exposure.  Despite this
knowledge, Defendant Mid-South Adhesive continued to sell Soft Seam
Adhesive to Defendant Franklin Corp., knowingly participating in its
intentional and tortious acts.

II.                 From the initial use of Soft Seam Adhesive in 1999
until 2004, Defendants intentionally concealed and failed to warn the
Plaintiffs on the glue line, and other employees exposed to the Soft
Seam Adhesive, of the dangers associated with the use of propyl bromide
in the Soft Seam Adhesive.

JJ.                From the initial use of Soft Seam Adhesive in 1999
until 2004, Defendant Franklin Corp., Franklin, Lyles, Livingston,
Clements, and Pumphrey directed Plaintiffs on the glue line to use the
Soft Seam Adhesive with full knowledge of the dangers of prolonged,
unprotected exposure to humans from propyl bromide, but intentionally
failed to make any attempt to ventilate the glue line, or to provide
proper respiratory, skin or eye protection to Plaintiffs.

KK.          In September 2000, a large spill of approximately 330
gallons of Soft Seam Adhesive occurred in the Poly Department at
Franklin Furniture.  Plaintiff Clark was instructed by Defendant Lyles
to clean up the spill, without informing him of the known dangers
associated with exposure to Soft Seam Adhesive containing propyl
bromide.  Further, Clark was directed to clean up the spill with no
ventilation, protective clothing or protective respiratory
equipment.   When asked by Clark about the dizziness and nausea caused
by the fumes during the clean up process, Defendant Lyles told Clark to
go outside and take a break, but to do whatever it took to get it
cleaned up.   Clark was directly exposed, without ventilation,
protective clothing or respiratory equipment for an extreme period of
exposure, to the Soft Seam Adhesive during this clean up process for
approximately ten (10) days. 

LL.             Clark was continually exposed to the Soft Seam Adhesive
through his employment due to the proximity of his office to the glue
line, as well as his work as Superintendent and his responsibilities of
maintaining the spray system on the glue line.  This exposure occurred
between 1999 until the time of his termination from Franklin Corp. in
November 2003.  During this exposure, he suffered from continuous
headaches, nausea, dizziness, burns on his arms, right leg and feet, as
well as mental and emotional distress.

MM.        In 2003, Plaintiff Tedford, in response to suffering from
numerous adverse side effects from working on the glue line and being
directly exposed to the Soft Seam Adhesive without ventilation,
respiratory, skin or eye protection for extreme periods of exposure,
obtained a Material Safety Data Sheet for Soft Seam Adhesive.  The
Material Safety Data Sheet stated the Soft Seam Adhesive contained
Propyl Bromide, that its vapors were harmful, that it was only to be
used with adequate ventilation, directions not to get it on skin or
eyes, that its symptoms from exposure included  coughing, headaches,
nausea, dizziness, wheezing, laryngitis, shortness of breath and
vomiting, defatting of skin, dermatitis, and that prolonged exposure may
cause adverse effects in the liver, kidney, central nervous system, and
respiratory system.  

NN.          Plaintiff Tedford brought the Material Safety Data Sheet to
her supervisor, Jim Clark.  She asked him if the problems she was
suffering from were caused by the Soft Seam Adhesive.  Clark took the
Material Safety Data Sheet to Defendants Livingston and Lyles and
confronted them with Plaintiff Tedford’s complaints.  Defendant Lyles
thereafter directed Defendant Pumphrey to make sure that all Material
Safety Data Sheets were to be kept away from the employees so that no
employee would be able to have access to the Material Safety Data
Sheets.  In accordance with these instructions, all Material Safety
Data Sheets were thereafter removed from the Soft Seam Adhesive
containers by Defendant Pumphrey, at the direction of Defendant Lyles,
acting on behalf of Defendant Franklin Corp.

OO.          Plaintiffs continued to complain of adverse physical
effects they were suffering to their supervisor, Jim Clark.  Clark
brought these complaints to the attention of Defendants Franklin, Lyles
and Livingston.  He specifically told Defendants Franklin, Lyles and
Livingston of these complaints from Plaintiffs.  Clark was verbally
reprimanded by Defendant Lyles in the Administrative Building, stating
that Clark was not doing a good enough job of convincing the Plaintiffs
that their complaints were “all in their heads” and that he had to
be a “better salesman” to convince the Plaintiffs that their
complaints were not real and that they were not related to their
continued exposure to the Soft Seam Adhesive.

PP.             Thereafter, Jim Clark prepared a written request for
ventilation on the glue line area from management at Defendant Franklin
Corp.  At a meeting attended by Defendant Franklin, Lyles and
Livingston, Clark was told by Defendant Franklin that no ventilation
system would be installed, as the company was not going to spend money
on a glue line ventilation system for an adhesive that was probably not
going to be allowed much longer anyway, and that it would be a waste of
money for the company to spend any money for the installation of the
requested ventilation system, regardless of any complaints from the
workers on the glue line.

QQ.          In January 2004, Plaintiff Smith was admitted to the
hospital due to, among other adverse physical conditions,  her
inability to walk as a result of central nervous system damage caused by
her prolonged exposure to propyl bromide.

RR.            In January 2004, Plaintiff Haire was admitted to the
hospital due to, among other adverse physical conditions, her inability
to walk as a result of central nervous system damage caused by her
prolonged exposure to propyl bromide.

SS.             In February 2004, Plaintiff Mixon was admitted to the
hospital due to, among other adverse physical conditions, her inability
to walk as a result of central nervous system damage caused by her
prolonged exposure to propyl bromide.

TT.             In April 2004, Plaintiff Tedford was diagnosed with,
among other adverse physical conditions, brain damage caused by her
prolonged exposure to propyl bromide.

UU.           In February 2004, OSHA made an inspection of the Franklin
Corp. furniture plant.  At that time, OSHA tested the air quality on
the glue line, and tested the amount of propyl bromide in the air during
a time period of five and one half (5 ½) hours.  This test was
utilized to determine the amount of hazardous chemical the workers on
the glue line were exposed to during this time period.  It samples the
air molecules, and measures the amount of propyl bromide in a
measurement of parts per million (“ppm”).  This test was performed
on the glue line and the air quality when the Soft Seam Adhesive was
being used by the workers, just as it had existed since 1999 at
Defendant Franklin Corp. when Soft Seam Adhesive first was put into the
glue line for use in the manufacturing process at the plant.

VV.           The recommended maximum human exposure limit for propyl
bromide, as determined by OSHA and in place since at least 2002, was 25
ppm of propyl bromide over an eight (8) hour work shift.  The air
tested at Defendant Franklin Corp., on the glue line under the same
conditions Plaintiffs had been subjected to since 1999, resulted in a
measurement of over 219 ppm over a period of  five and one half (5 ½)
hours, which when extrapolated to a normal work shift results in an
exposure of more than 12 times the recommended maximum human exposure
limit set by OSHA for propyl bromide.

WW.       OSHA issued two separate safety violation citations to
Defendant Franklin Corp. for failure to abide by federal workplace
safety laws and regulations and ordered that a ventilation system be
installed, respiratory, skin and eye protection be provided to the
workers, and a fine be paid by Defendant Franklin Corp.  

XX.           Defendant Franklin Corp. entered into an Agreed Order with
OSHA, admitting the violations resulting from the inspection which
occurred in February 2004.

