United States District Court, S.D. Texas, Galveston Division
WILLIAM J. ADAMS, ET AL. Plaintiffs.
ALCOLAC, INC., ET AL. Defendants.
MEMORANDUM AND RECOMMENDATION
M. EDISON UNITED STATES MAGISTRATE JUDGE
the Court is Defendant Alcolac, Inc. and Rhodia Inc.'s
Motion for Summary Judgment and Memorandum in Support
("Motion for Summary Judgment"). See Dkt.
17. The Motion for Summary Judgment was referred to this
Court for report and recommendation pursuant to 28 U.S.C.
§ 636(b)(1). See Dkt. 35.
reviewing the motion, the responsive briefing, and applicable
case law, the Court recommends that the Motion for Summary
Judgment be GRANTED and this suit be
AND PROCEDURAL BACKGROUND
are comprised of military personnel or their family members,
who allege that during the 1991 Gulf War the military
personnel suffered serious injuries after the Government of
Iraq exposed them to mustard gas. In this lawsuit,
Plaintiffs, who will be referred to as "the Gulf War
Veterans," seek relief for damages sustained as a result
of this exposure. In pursuit of this relief, the Gulf War
Veterans have sued two companies that they believe provided
the Government of Iraq material support in creating the
mustard gas: Alcolac, Inc. ("Alcolac") and Rhodia
Inc. ("Rhodia"), a successor owner of
years leading up to the Gulf War, Alcolac manufactured the
chemical Thiodiglycol ("TDG"). TDG is a chemical
solvent that has lawful applications in the textile industry,
in the manufacture of ink, and in various other industries.
However, TDG is also a chemical precursor often used to
create mustard gas.
1980s, Alcolac International, Inc. ("Alcolac
International"), a non-party and former subsidiary of
Alcolac, was responsible for internationally marketing and
selling the TDG manufactured by Alcolac. Between 1984 and
1987, several years before the Gulf War, Alcolac
International sold large quantities of TDG to various
third-party buyers- none of whom are defendants in this suit.
Some of those third-party buyers transhipped the TDG they
purchased from Alcolac International to Pakistan and Iran.
Other third-party buyers transhipped the TDG they purchased
to Iraq, where it was used to create mustard gas.
result of the transhipments that made it to Pakistan and
Iran, the United States charged Alcolac International with
violating the Export Administration Act ("EAA") on
Force Against Iraq Resolution, Pub. L. 102-1, 105 Stat. 3
(1991); Dkt. 17-11. The war that flowed from the Joint
Resolution became known as the Gulf War. the basis that it
knew or should have known that the ultimate destination
listed on the shipping declaration filed with the U.S.
Customs Service was not the intended destination thereby
facilitating the re-export to Pakistan and Iran. The United
States did not charge Alcolac International for violating the
EAA based on the sales that were ultimately transhipped to
Iraq. Nonetheless, the Gulf War Veterans contend that
Defendants should be held responsible for their injuries in
this lawsuit because, acting through Alcolac International,
Defendants intended to aid Iraq in creating mustard gas.
case is certainly not new. In June 1994, as a part of a
broader products liability case, the substance of this suit
was first alleged in Cause No. 94-C-1392; Coleman, et.
al. v. ABB Lummus Crest, Inc., et al; In the 23rd
District Court of Brazoria County, Texas. The
Coleman suit included allegations related to
injuries caused by both sarin and mustard gas, both of which
were used in the Gulf War. In 2008, the state court severed
the claims related to injuries caused by mustard gas from
those caused by sarin gas, and the mustard gas claims moved
forward in Cause No. 46491; Adams, et al. vs. Alcolac,
Inc., et al.; In the 23rd Judicial District Court of
Brazoria County, Texas.
the pendency of Adams in state court, it was decided
that one plaintiff, Dr. Victor Alarcon, would serve as the
bellwether case. Defendants moved for summary judgment on all
of Dr. Alarcon's claims: negligence; gross negligence;
negligence per se; strict liability; and a violation of the
Texas Uniform Fraudulent Transfer Act ("TUFTA"),
TEX. BUS. & COMM. CODE § 24.001 et seq. The
bellwether case failed because, as explained by the Texas
Court of Appeals, Dr. Alarcon presented "no evidence
from which a reasonable fact finder could conclude that [he]
was exposed to mustard gas made with Alcolac's TDG."
Alarcon v. AlcolacInc., 488 S.W.3d 813, 828-29 (Tex.
App.-Houston [14th Dist] 2016, pet. denied). In other words,
Dr. Alarcon failed to carry his burden to demonstrate
causation on each of his claims. See Id. at 829.
their success against Dr. Alarcon, Defendants moved for
summary judgment against the Gulf War Veterans. Prior to the
state court ruling on the motion, the Gulf War Veterans filed
a Fourth Amended Petition in Intervention, adding two new
claims, including a claim brought under federal law.
See Dkt. 1-2 at 165-91.
on the inclusion of the federal claim, Defendants removed the
Adams case to this Court on June 27, 2018.
See Dkt. 1. In this Court, the Gulf War Veterans
filed a Fifth Amended Petition in Intervention ("Active
Complaint"). See Dkt. 14. The Active Complaint
is substantially similar to the Fourth Amended Petition that
was filed in state court. The alleged causes of action
include: negligence; gross negligence; negligence per se;
strict liability; a violation of TUFTA; civil conspiracy; and
a violation of the Anti-Terrorism Act (the "ATA"),
18U.S.C. §2333 etseq. See Dkt. 14. The only
real difference between the Fourth Amended Petition and the
Active Complaint is that the Gulf War Veterans have beefed up
their factual allegations.
removal, the Gulf War Veterans have stipulated that their
product liability and negligence related claims were
foreclosed by the decision in Alarcon, 488 S.W.3d
813. See Dkts. 9, 12. Thus, at this juncture, the
only claims remaining before the Court are: a violation of
the ATA; civil conspiracy; and a violation of
TUFTA. Defendants move for summary judgment on
all three claims.
judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a). A
genuine dispute of material fact does not exist unless
"the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Burell v.
Prudential Ins. Co. of Am.,820 F.3d 132, 136 (5th Cir.
2016) (citation omitted). "The moving party . . . bears
the initial responsibility of informing the district court of
the basis for its motion." Brandon v. Sage
Corp.,808 F.3d 266, 269-70 (5th Cir. 2015) (citation
omitted). If the burden of production at trial
"ultimately rests on the nonmovant, the movant must
merely demonstrate an absence of evidentiary support in the
record for the nonmovant's case." Lyles v.
Medtronic SofamorDanek, USA, Inc.,871 F.3d 305, 310-11
(5th Cir. 2017). Once a party "meets the initial burden
of demonstrating that there exists no genuine issue of
material fact for trial, the burden shifts to the non-movant
to produce evidence of the existence of such an issue for
trial." Brandon, 808 F.3d at 270. The party
opposing summary judgment "must do more than simply show
that there is some metaphysical doubt as to the material
facts. [It] must go beyond the pleadings and come forward
with specific facts indicating a genuine issue for trial to
avoid summary judgment." Id. ...