"The matters most debated in a deliberative body tend to be the minor ones where everybody understands the issues." - C. Northcote Parkinson's laws of human conduct
[Note: This rather absurd action, created by Johnnie Cochran, had the decency to
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
LENA R. GAINES-TABB,
KIMBERLY BURT, STEVEN ABEL,
and NAEEM KHAN, and all
others similarly situated,
ICI EXPLOSIVES U.S.A., INC.,
a Delaware Corporation,
Defendant. FILED MAY 10, 1995
CASE NO.: CIV-95 719 R
CLASS ACTION COMPLAINT
NOW INTO COURT, through undersigned counsel, come Lena R. Gaines-Tabb,
Kimberly Burt, Steven Abel and Naeem Khan who through this complaint
respectfully represent that they have injuries to their person and property
common to all those similarly situated, having incurred damages from, and
arising out of, the bombing of the A.P. Murrah Building in Oklahoma City,
Oklahoma on April 19, 1995 as a result of the negligence and breaches of
duty under manufacturers product liability of the defendant. The
representative plaintiffs, therefore, seek to represent and prosecute all
claims through class action proceedings on behalf of all those persons
similarly situated who are citizens and residents of the states and
territories of the United States of America, for the following reasons, to-
The jurisdiction of this honorable Court is founded upon 28 U.S.C.
PLAINTIFFS AND PROPOSED CLASS REPRESENTATIVES:
The plaintiffs herein are Lena R. Gaines-Tabb, Kimberly Burt, Steven Abel,
and Naeem Khan all citizens of the State of Oklahoma.
All such plaintiffs further appear as proposed class representatives on
behalf of all those individuals similarly situated.
The defendant, ICI Explosives U.S.A., Inc., is and has been a manufacturer,
designer, promoter, distributor and seller of ammonium nitrate fertilizer
which based upon information and belief was used by Timothy McVeigh in
testing and building the bomb which caused the explosion that damaged the
A.P. Murrah Building, its occupants, surrounding buildings and their
occupants as well as other persons and property within a wide area
surrounding the A.P. Murrah Building.
ICI Explosives U.S.A., Inc. is a Delaware corporation with its principle
place of business in Texas, doing business in the Western Federal District
of Oklahoma during all material times herein and designer, manufacturer,
promoter and seller of the above said ammonium nitrate, which defendant
placed in the stream of commerce and which caused damages in the Western
District of Oklahoma during all material times herein.
ICI Explosives U.S.A., Inc. was at all times complained of and is at the
time of the filing of this lawsuit domesticated in the State of Oklahoma and
has designated the CT Corporation as its registered service agent.
This action is brought in memory of all of those who have been killed or
injured by the bombing of the A. P. Murrah Building as well as those who
have been killed and injured in prior bombings where ammonium nitrate car or
truck bombs have been used. Further, this action is brought in hopes to
prevent others from being killed or injured in the future by deterring
manufacturers of ammonium nitrate fertilizer from marketing such products
without an additive to reduce or eliminate the explosive potential of such
The proposed class representatives and named plaintiffs seek to represent
the following class:
All citizens, residents and entities of the states and territories of the
United States of America who have suffered personal injuries and/or property
damages and any and all other damages as a result of the bombing of the A.P.
Murrah Building and surrounding areas and who have sustained or may in the
future sustained damages thereby and all those individuals who may claim
loss of consortium from or wrongful death of an individual relative who was
injured or killed in the blast.
Concentrating this litigation in one forum will aid with judicial economy
and efficiency and promote parity among the claims of individual class
members as well as judicial consistency.
The claims of the proposed class representatives are typical of a cross
section of the class and of the claims they seek to represent.
Each of the plaintiffs and proposed class representatives sustained physical
and psychological personal injuries and damage to their property as a result
of the blast and have experienced extreme mental anguish and grief.
The claims of each plaintiff and proposed class representative exceed
$50,000, the jurisdictional limit of this court.
The prosecution of separate actions by class members against the defendant
would create a risk of:
(A) inconsistent or varying adjudications with respect to individual members
of the class which would establish incompatible standards of conduct for the
party opposing the class, or (B) adjudications with respect to individual
members of the class which would as a practical matter be dispositive of the
interest of the other members not parties to the adjudications or
substantially impair or impede their ability to protect their interest.
A class action is superior to other available methods for the fair and
efficient adjudication of this litigation, since individual joinder of all
members of the class is impracticable. Even if every putative class member
herein could afford individual litigation, it would be unduly burdensome on
the Courts in which the individual litigations would proceed. Individual
litigation magnifies the delay and expense to all parties in the court
system of resolving the controversies engendered by defendant's product. By
contrast, the class action device presents far and fewer management
difficulties and provides the benefits of unitary adjudication economies
of skill, and comprehensive supervision by a single court.
The class is so numerous that joinder of all members is impractical.
Plaintiffs will fairly and adequately represent and protect the interest of
all members of the described class. Plaintiffs have retained attorneys
experienced in multi-party complex product liability and negligence
litigation to represent the class members herein.
The actual number of individuals who will elect to maintain their claims
through this litigation will be better established after notification to all
absentees that this action is pending.
The questions of fact, as alleged herein, and issues of law, as pled herein,
arise out of the claims made by the proposed class herein and are common to
all members of the class.
Common questions of law and fact as asserted herein predominate over
individual questions of causation of individual damages and the monetary
compensation therefore and defenses of the defendant are generally
applicable to the entire class rather than to individual claims.
Accordingly, class certification is appropriate under Federal Rules of Civil
Procedure 23(a), (b)(2), (b)(3), and (e) and the class action vehicle is the
superior method for handling this litigation.
Plaintiffs' injuries were caused by the strict liability, products
liability, negligence and violations of customary and usual practices and
complicity through either action or non-action, with other manufacturers and
sellers of fertilizer grade ammonium nitrate to withhold from the market
technological advancements to make fertilizer grade of ammonium nitrate
safe. Furthermore, defendant's act constitutes intentional and negligent
infliction of emotional distress.
Defendant is liable for punitive damages for its reckless or wanton or
willful disregard for the public's safety in the manufacturing, promoting,
distributing and selling of fertilizer grade of ammonium nitrate without the
additive described herein. The punitive damages sought are for the purpose
of deterring the future marketing or such ammonium nitrate fertilizer by
this defendant and others without the additive described herein in order to
save the lives of future potential bombing victims.
The damages to the named plaintiffs and all others similarly situated
include, but are not limited to, physical injury; mental and emotional
distress; pain and suffering; economic loss, including medical expenses and
lost wages; inconvenience; stigmatization; loss of consortium including
support, services, sex and society; continual need for medical monitoring,
and property and business damages and resulting losses.
It has been widely reported and therefore, based upon information and
belief, plaintiffs allege:
(A) That the fingerprints of Timothy McVeigh (the person reported to have
been responsible for the bombing of the A.P. Murrah Building) were
reportedly found on a sales receipt or other documents evidencing the sale
of 2,000 pounds of fertilizer grade ammonium nitrate to Terry Nichols, a
known acquaintance of Timothy McVeigh's. That the ammonium nitrate
fertilizer was sold by the Mid-Kansas Co-op in McPherson, Kansas to Terry
(B) That the defendant manufactured, distributed and/or sold the ammonium
nitrate fertilizer to the Mid-Kansas Co-op and it was allegedly resold to
Terry Nichols by Mid-Kansas Co-op shortly before the bombing of the A.P.
(C) That testing of explosives made with ammonium nitrate with fertilizer
was carried out on the farm of Terry Nichols with the participation and/or
knowledge of Timothy McVeigh. That there is believed to be evidence in the
nature of said samples collected by law enforcement officers to suggest such
ammonium nitrate fertilizer was not used on the Nichols' farm for fertilizer
purposes but instead was used for building and testing bombs.
(D) That pieces of blue plastic containers believed to have contained the
ammonium nitrate bomb which caused plaintiffs' injuries and damages and the
damages of the class sought to be certified were found in and around the
wreckage of the A.P. Murrah Building and were similar, if not identical, to
blue plastic containers found at the farm of Terry Nichols.
(E) That Terry Nichols was in Oklahoma City, Oklahoma with Timothy McVeigh
approximately three days prior to the bombing.
(F) That Timothy McVeigh was identified as one of the persons who rented the
Ryder truck which contained the ammonium nitrate bomb which caused the
damage to the plaintiffs.
(G) That it has been widely known in the industry which produces ammonium
nitrate for fertilizer that such ammonium nitrate fertilizer is widely
purchased by terrorists and other criminal elements who desire to cause
injury or death through the use of so-called car or truck bombs because
ammonium nitrate is easily made into a highly volatile explosive due to its
highly explosive potential.
(H) That terrorists and such others are unable to purchase other suitable
explosives to use instead of ammonium nitrate fertilizer for car and truck
bombs because permits are required for such purchases.
(I) That industrial grade ammonium nitrate is sold as an explosive by
distributors of ammonium nitrate including this defendant.
(J) That fertilizer grade ammonium nitrate is easily converted to industrial
grade ammonium nitrate.
(K) That the manufactures and distributors of fertilizer grade and
industrial grade ammonium nitrate including this defendant knew or should
have known for decades before the bombing complained of that law enforcement
officials had been advising the industry of which defendant was and is a
member that such ammonium nitrate fertilizer was so highly dangerous that it
should not be manufactured and marketed without an additive which would
reduce or eliminate its potential explosive nature and that it was the
substance of choice of those building car and truck bombs.
(L) That members of defendant's industry knew or should have known by widely
disseminated materials throughout the industry that its ammonium nitrate
fertilizer was being purchased or was likely to be purchased for the purpose
of making bombs and exploding them therefore injuring and damaging persons
such as the plaintiffs and the class sought to be certified. Such law
enforcement officials also advised the industry that more persons would be
killed or injured by terrorist bombs made of fertilizer grade ammonium
nitrate if the industry failed to include the additive to reduce or
eliminate the explosive potentials of the product.
(M) That there were technological and economically feasible additives which
could have been added to fertilizer grade ammonium nitrate which would
improve the fertilizer qualities but would reduce or eliminate the risk such
product would be used in a bomb.
Such a process was patented in the 1960 decade. Such processes have been
employed in fertilizer grade ammonium nitrate in England, South Africa and
perhaps other countries where the sale of such fertilizer grade ammonium
nitrate is prohibited in the absence of such additives. It is believed this
defendant and its grandfather corporation sold such fertilizer grade
ammonium nitrate in such countries with an additive to reduce its explosive
(N) That the technical literature available to the industry of which
defendant was and is a member is replete with information that would put a
reasonable manufacturer and supplier of fertilizer grade ammonium nitrate on
notice that such manufactures and/or supplier's fertilizer grade of ammonium
nitrate was likely or certain to be used to injure or damage persons such as
the plaintiffs and the class sought to be certified in the absence of such
(O) That no permit is required for terrorists or others to purchase
fertilizer grade of ammonium nitrate which permitted Terry [sic] McVeigh who
would not have been able to secure sufficient other explosive material
suitable for a car or truck bomb to possess the material necessary to test
and make such an explosive bomb.
The fertilizer grade of ammonium nitrate allegedly manufactured and sold by
the defendant is defective and unreasonably dangerous, and its social
utility outweighs its benefits and risk in the absence of the above
The defendant was negligent by failing to include an additive to reduce the
explosive potential of the fertilizer grade of ammonium nitrate.
The bomb which injured and damaged the plaintiffs was likely not to have
been made or used if fertilizer grade ammonium nitrate had not been
manufactured, sold and/or distributed by the defendant without such
That defendant by failing to add the additive was in complicity with all
other manufacturers, distributors and sellers of fertilizer grade ammonium
nitrate not to make fertilizer grade ammonium nitrate reasonably safe so
that foreseeable bombings of the type which injured and damaged plaintiffs
would not occur.
WHEREFORE, plaintiffs, individually and on behalf of all those similarly
situated members of this proposed class, pray that this Court certify a
class herein. appoint plaintiffs as representatives of the class, that
defendant be summoned with a copy of the complaint and that defendant be
cited to appear and answer for their alleged wrongful acts, and after due
proceedings are had, including trial by jury, that judgment be rendered in
plaintiffs' favor, on their behalf individually and all other similarly
situated members of this proposed class and against defendant herein in an
amount to compensate the plaintiffs and each member of the class for all
damages to which they are entitled as per the facts to be proven at trial on
the merits herein and according to all theories specifically pled or as
applicable to the facts herein as determined by the Court.
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