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Appeals from the United States District Court for the Western District of Louisiana

Mr. Claude Swope and his wife brought this suit alleging that he was rendered totally and permanently disabled by lung damage caused through his inhalation of ozone during his employment as a maintenance worker by Columbian Chemicals Company (“Columbian”). Columbian is in the business of manufacturing carbon black with a process that involves the use of ozone. Columbian purchased and operated ozone generators manufactured by Emery Industries, Inc. (“Emery”). Henkel Corporation/Millennium Petrochemicals, Inc., (“Henkel”) is Emery’s successor corporation and subject to liability for harm to persons caused by Emery’s defective products.

Under the Swopes’ allegations of facts, Mr. Swope’s lung damage resulted from hazardous characteristics of the Emery ozone generators which made them unreasonably dangerous in design and unreasonably dangerous for lack of an adequate warning of those hazards. The Swopes allege that Columbian knew to a substantial certainty that its continual exposures of Mr. Swope to harmful amounts of ozone without providing him with any respiratory protection would cause repeated damage to his lungs. Accordingly, the Swopes sued for damages against Henkel under allegations raising products liability theories and against Columbian for intentional torts or batteries. The district court granted motions for summary judgment by Columbian and Henkel rejecting all of the Swopes’ claims, except that their products liability claim for design defect was dismissed voluntarily without prejudice to its refiling in the event of reversal of the summary judgment in favor of Henkel on appeal.

 
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