CLARKSBURG -- Two chemical companies accused of manufacturing a chemical that allegedly burned a Marion County woman's face say they are not responsible for making the substance and are asking the court to dismiss her case against them.
Susanne E. Bienkoski originally filed a lawsuit in Marion Circuit Court against the companies – Alliance Trading and Pool Connection – and against the store where she purchased the chemical -- Boyce, Inc., doing business as Pool Queen/Party Connection.
Bienkoski says she visited the Fairmont Pool Queen on June 1, 2007, to purchase pool chemicals and supplies for opening her pool for the summer.
"Plaintiff had purchased her pool from Pool Queen approximately 14 years earlier and she valued the recommendations of its employees," the complaint says.
Following an evaluation of the water in Bienkoski's pool, Pool Queen employees gave her a list of recommended steps to take in the opening of her pool. Included in the list was a recommendation to add five bags of Shockwave to it, Bienkoski claims.
On June 2, 2007, Bienkoski says she placed the Shockwave in a bucket and began to slowly fill the bucket with water from her kitchen sink, per the instructions she was provided with the chemical.
However, the mixture began bubbling, smoking and producing significant heat as Bienkoski was filling the bucket, according to the complaint. A white smoke began to fill the inside of Bienkoski's home, she says.
Quickly, Bienkoski grabbed the bucket to bring it outside, but caused the mixture to splash onto her face as she was running, she claims.
A construction worker who heard Bienkoski's cries of pain rushed over to help her and threw the bucket to the ground, the suit states.
"Immediately following her exposure, Plaintiff experienced difficulty seeing and breathing, and continued to choke and cough," the complaint says. "She went inside her house, still foggy with white smoke, and took a shower with her clothes still on in an attempt to rinse her body of the Shockwave chemical."
Later, Bienkoski says she found her cat, which was also exposed to the chemical, struggling to breathe.
After rushing her cat to the vet's office, Bienkoski says the veterinarian administered ice to Bienkoski's face, as it was red, and called poison control on her behalf. The poison control center recommended Bienkoski rush to the nearest emergency room.
So, Bienkoski went to the emergency room at Fairmont General Hospital where she again showered, was released and was instructed to apply Neosporin to the burns on her face, according to the complaint.
Still, Bienkoski's symptoms did not go away.
"In the months following her exposure, Plaintiff continued to suffer from chronic coughing, especially when lying flat, a hoarse voice, recurrent sore throats, a change in her ability to taste, general asthma symptoms, and diminished lung capacity," the complaint says.
Bienkoski visited an occupational health specialist at West Virginia University Hospitals in Morgantown where she was diagnosed with Retroactive Airways Dysfunction Syndrome, an asthma-like syndrome related to chemical exposure, according to the complaint.
In addition, Bienkoski says since her exposure to the Shockwave chemical, she has experienced three episodes of acute bronchitis and has been forced to purchase a rescue inhaler.
She has also incurred medical and veterinarian bills and has suffered emotional distress, great pain, a diminished ability to enjoy her everyday activities in life and loss of quality of life. Bienkoski says she has been forced to miss work days to use sick time she otherwise would not have used.
Bienkoski claims Pool Queen should not have recommended she use the Shockwave, which she says was inadequately labeled and failed to warn her of its possible dangers.
But the store says it is not to blame for Bienkoski's injuries, and if anyone were to be at fault, it is Beinkoski.
"This Defendant alleges that Plaintiff was guilty of negligence equal to or greater than the combined negligence alleged against the Defendants, which negligence proximately caused or contributed to the injuries and damages of which the Plaintiff complains, and consequently the Plaintiff's claims are barred by the doctrine of comparative negligence," the store's answer to Bienkoski's complaint says.
Pool Corporation and Alliance should not have placed the Shockwave into the stream of commerce, Bienkoski's suit states.
But Pool Corporation and Alliance say they did not manufacture the particular bag that caused Bienkoski's injuries. Instead, Pool Corporation's vendor, Arch Chemicals, produced the bag, the companies say.
Because Bienkoski failed to add Arch Chemicals as a defendant to her complaint, the lawsuit should be dismissed, Pool Corporation and Alliance argue.
In the alternative to the complaint's dismissal, the two companies are asking the court to require Bienkoski to join Arch Chemicals as a defendant and to award them other relief the court deems just.
Pool Queen is asking for judgment against the other defendants for contribution and indemnification, plus attorneys' fees and costs.
In her complaint, Bienkoski is seeking compensatory damages and other relief the court deems just.
Alliance and Pool Corporation removed the case to federal court, saying Bienkoski's complaint involves a question about federal law.
The companies contend that under the Federal Insecticide, Fungicide and Rodenticide Act no warning labels have to be added unless the EPA directs otherwise.
"Under FIFRA, all labeling for products subject to the FIRFA statute must be approved by the EPA," the answer to Bienkoski's complaint states. "The Shockwave, labeling, design, and label content were approved by the EPA, pursuant to FIRFA."
Frank E. Simmerman Jr. and Chad L. Taylor of Simmerman Law Office in Clarksburg will be representing Bienkoski.
Charles R. Bailey and Sang Ah Koh of Bailey and Wyant in Charleston will be representing Alliance and Pool Corporation.
D. Andrew McMunn of Smith, McMunn and Glover in Clarksburg will be representing Pool Queen.
U.S. District Court case number: 1:09-CV-68