                                                                                                     ACCEPTED
                                                                                                14-14-00377-CV
                                                                                  FOURTEENTH COURT OF APPEALS
                                                                                              HOUSTON, TEXAS
                                                                                            4/8/2015 1:49:19 PM
                                                                                           CHRISTOPHER PRINE
                                                                                                         CLERK

                          NO. 14-14-00377-CV
      __________________________________________________________
                                                           FILED IN
                                                    14th COURT OF APPEALS
                      IN THE COURT OF APPEALS          HOUSTON, TEXAS
              FOR THE FOURTEENTH DISTRICT OF TEXAS   4/8/2015 1:49:19 PM
                          HOUSTON, TEXAS            CHRISTOPHER A. PRINE
                                                             Clerk
      __________________________________________________________

                                   VICTOR ALARCON

                                          Appellant

                                              V.

                          ALCOLAC INC. and RHODIA INC.

                              Appellees
    ____________________________________________________________

                Appealed from the 23rd District Court of Brazoria County, Texas
                             Trial Court Cause No.: 76868-CV

    ____________________________________________________________

                    NOTICE OF APPELLEES’ EXHIBITS FOR
                     ORAL ARGUMENTS ON APRIL 9, 2015
____________________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

       In compliance with the Court’s letter of February 23, 2015, APPELLEES Alcolac Inc.

and Rhodia Inc. give notice they will be presenting the following exhibits at oral arguments

scheduled for April 9, 2015.

              1.      Appellant’s Brief, page 40.

              2.      Appellant’s Brief, page 41.

              3.      Appellant’s Brief, page 42.

                                               1
               4.         Appellant’s Reply Brief, page 6.

Copies of these exhibits are attached hereto and pursuant to TRAP Appendix A, the appropriate

fees paid to the Court.

                                                Respectfully submitted,

                                                WELSH LeBLANC, L.L.P.

                                                       /s/ H. Ronald Welsh
                                                H. Ronald Welsh
                                                State Bar No. 21167600
                                                rwelsh@welshleblanc.com
                                                Daphne M. Cherry
                                                State Bar No. 24006990
                                                dcherry@welshleblanc.com
                                                8 E. Greenway Plaza, Suite 1120
                                                Houston, Texas 77046
                                                Telephone: (713) 554-7770
                                                Facsimile: (713) 554-7771
                                                ATTORNEYS FOR APPELLEES,
                                                ALCOLAC INC. AND RHODIA INC.


                                   CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing instrument was forwarded to
all counsel of record via electronic service on this the 8th day of April 2015.


                                                             /s/H. Ronald Welsh
                                                       H. Ronald Welsh




                                                   2
                                                                       APPELLANT'S BRIEF
                                                                         Alarcon v. Alcolac
                                                                              Sept. 4, 2014


listed by Iraq in the FFCD for TDG shipments. (Compare, CR V. 1 699 to 496 &

499).

        In fact, evidence of Alcolac product identification is significantly better than

evidence generally offered in product liability cases involving latent occupational

disease. Typically, those cases rely on eyewitness testimony of personal

observations, based upon individual memories that can span decades, with no

ability to corroborate such testimony. See, e.g. Balbos, 604 A. 2d at 458 (witness

identifies a product as “one of the products used”); Roehline v. National Gypsum

Co., 786 F. 2d 1225, 1226 (4th Cir. 1986) (testimony that “90 percent of the

products used sufficient); Reiter v. Pneumboabex, 47 MD. 57, 62; 8 A. 3d 725, 728

(MD 2010). In this case, the unequivocal evidence offered by Appellant is

unusually reliable compared to other toxic tort cases. There are actual written and

photographic records of Alcolacs’ product used to make mustard gas by Iraq.

Accordingly, the Trial Court erred in finding insufficient evidence of product

identification.

        A.    Alcolac Was the Only TDG Supplied to Iraq from 1987-1990. 

        The mustard gas to which Dr. Alarcon was exposed could only be

manufactured from Alcolac TDG sent to Iraq. (CR V. 2, 1018). As reported by

the CIA, Iraq had consumed approximately 1800 tons of mustard agent when the




                                           40
                                                                   APPELLANT'S BRIEF
                                                                     Alarcon v. Alcolac
                                                                          Sept. 4, 2014


conflict with Iran ended in 1988. (CR V. 1 1597). The Iraq Survey Group Report

explains:

            The war with Iran ended in August 1988. According to Iraq, it
            consumed almost 19,500 chemical bombs, over 54,000 chemical
            artillery shells and 27,000 short-range chemical rockets between
            1983 and 1988. Iraq declared it consumed about 1800 tons of
            mustard gas . . . Almost two-thirds of the CW weapons were
            used in the last 18 months of the war.

(CR V. 1, 1597). Additionally, Iraq declared that 100 tons of non-weaponized

mustard was destroyed by Iraq by the end of 1988. (CR V. 1, 1013). During the

Iran-Iraq war, Iraq was consuming chemical agents “as fast as it could be

produced.” (CR V. 1, 1596). UNSCOM concluded that Iraq consumed nearly

3000 tons of chemical weapons from 1981 to 1988. (CR V. 1, 1703). These

reports indicate that Iraq had completely exhausted its mustard agent supplies by

the end of the Iran-Iraq War.

      Iraq ceased production of chemical weapons in 1988 after its war with Iran

ended. (CR V. 1, 664, 1596). In 1990, chemical production activities for mustard

resumed. (CR V. 1, 664, 1596, 1652). Consequently, any Iraq acquisitions of

TDG in late 1987 – 1988 from Alcolac represented Iraq’s only available TDG

precursor for the production of the chemical weapon, mustard gas at that time.

      While invoices indicate Alcolac supplied a minimum of four shipments of

TDG to Iraq in 1987 and 1988, totaling 599 tons, circumstantial evidence strongly

suggests there were additional shipments. (CR V. 1, 496-519, 699,799; V. 2,

                                        41
                                                                       APPELLANT'S BRIEF
                                                                         Alarcon v. Alcolac
                                                                              Sept. 4, 2014


120/5-21, 189, 202). The FFCD reveals that Alcolac, through Companies Inc. and

Oriac Co., shipped 1000 tons of TDG to Iraq between 1987 and 1988. (CR V. 1,

699, 799). The FFCD declares that Alcolac was Iraq’s only supplier of TDG from

1987 until the start of the Persian Gulf War in 1991. (CR V. 1, 673-4, 699, 799).

Moreover, the U.S. Customs investigation revealed that Alcolac had actually

destroyed documents and maintained very poor records. (CR V. 1, 45, 73; V. 2,

202). It is likely that Alcolac did not produce all of its sales invoices, either to the

United States Customs Office or to the parties in this case.

      Finally the FFCD reveals that 774 tons of mustard agent were produced

between 1988-1990. (CR V. 1, 1016, Table I, 1652). Appellant’s expert, Frank

Parker, performed an assessment of this tonnage based upon the production

formula revealed in the FFCD. For every ton of TDG, one ton of mustard was

produced. (CR V. 2, 189). According to Mr. Parker, the FFCD production reports

would lead a reasonable person to conclude that “it is more likely than not that all

of the 774 tons of TDG produced from 1988 to 1990 were produced with Alcolac

TDG.” (CR V. 2, 189).          Accordingly, the weapons which were armed and

deployed in the Persian Gulf War contained mustard agent manufactured from

Alcolac TDG.

                            




                                          42
                                                                APPELLANT'S REPLY BRIEF
                                                                        Alarcon v. Alcolac
                                                                             Jan. 15, 2015


      A.     Iraq’s Earlier Mustard Supplies Were Likely Exhausted by
             August 1988.

      The Appellees make misleading interpretations of the record. For example,

Appellees claim that documents CR V. 1, 1013, 1596-97 & 1703, relating to Iraq’s

complete exhaustion of its mustard agent supply do not reach this conclusion and

amount to “inference.” (Appellees’ Brief at 22). Appellees are wrong; these pages

explain how quantities of mustard gas were handled after the Iran-Iraq war. As

reflected by the following record cites:

            CR V. 1, 1013: shows that a total of 100 tons of mustard gas was

             destroyed by Iraq from 1985 to 1988, and that 30 tons were destroyed

             at the end of the Iraq-Iran war because “Iraq decided to get rid of the

             quantity after the end of the war.”

            CR V. 1, 1597: shows that the CIA acknowledged Iraq’s declaration

             that it consumed 1800 tons of mustard gas during the Iraq war, and

             deployed 81,000 artillery shells and chemical rockets containing

             chemical weapons.

Obviously, Iraq was not holding its TDG supply in reserve. Furthermore:

            CR V. 1, 1703 provides a supplemental CIA conclusion:

              “[O]nce the Iran-Iraq war was under way, Baghdad used lethal
             chemical weapons on a scale not seen in decades. Iraq began using . .
             blister agents in 1983. . . CW attacks against Iran increased until the
             conclusion of the Iran Iraq war in 1988. In addition Iraq used both
             CW and riot control agents against its own Kurdish populations . . .

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