The Bayer Cropscience in Institute.

CHARLESTON -– A multi-million dollar lawsuit alleges a third death can be attributed to a 2008 explosion at a Charleston-area chemical plant.

The Bayer Corporation and West Virginia State University are named as co-defendants in a wrongful death lawsuit filed Sept. 16 by Mt. Hope resident Portia Gray. In her Kanawha Circuit Court complaint, Gray alleges her son, Ra'Sean, died weeks after breathing the fallout left in his dormitory room from a 2008 explosion at Bayer's Institute plant.

The suit is the first to be filed against Bayer relating to the explosion that resulted in the deaths of two of its employees.

Death linked to fallout

In her suit, Gray maintains that Ra'Sean, then 19 years old, was a WVSU student on Aug. 28, 2008. The suit does not specify if he was a new or returning student or what he was studying.

However, it was on that day about 10:30 p.m. an explosion occurred in the unit where Bayer manufactures its brand-name pesticide Larvin. Following the explosion, Kanawha County emergency officials ordered residents between South Charleston and the Putnam County sides of St. Albans and Nitro to remain in their homes until a fire resulting from the explosion was contained.

The "shelter-in-place" included WVSU which neighbors the Bayer plant. The suit does not specify where Ra'Sean was on campus in the aftermath of the explosion, but he remained indoors until given the "all-clear" signal, and then went to his dorm room.

Upon return, Gray alleges Ra'Sean discovered a "foul smelling order." Also, because the window facing the plant was open, the room was "covered in dust or soot."

Immediately, Gray alleges Ra'Sean notified WVSU officials of both the odor and dust/soot. Though the suit is unclear when and to whom, Gray says Ra'Sean notified WVSU officials "several additional times of the dust, soot and odor."

About three weeks after the explosion on Sept. 17, 2008, Gray maintains Ra'Sean checked himself into the emergency room at Thomas Memorial Hospital in South Charleston "complaining of shortness of breath and chest pains." Though treated and released, he returned the following day in respiratory distress, and later died.

According to the suit, Ra'Sean died as a result of a pulmonary embolism, a blockage in the arteries to one of the lungs caused by a substance that has travelled through the bloodstream usually due to a clot in the deep veins of the legs. Dr. Paul F. Mullen, who performed the autopsy, cited that as Ra'Sean's immediate cause of death, and listed "morbid obesity" as a contributing factor.

Also, his death certificate listed his residence on the second floor of Sullivan Hall. Sullivan is the dormitory furthest away from the plant on the opposite side of campus.

In the suit, Gray alleges both Bayer and WVSU were negligent in Ra'Sean's death.

Specifically, she maintains Bayer failed to not only properly store and monitor chemicals at the Institute plant, but also notify the public when they were released into the air following the explosion. Also, WVSU breached its duty to Ra'Sean in not responding to his "requests that the remnants of the explosion be removed from [his] dormitory [room]."

In addition to the parent company, Gray names Bayer's subsidiaries Bayer CropScience, which operates the Institute plant, and Bayer CropScience Holding, Inc. as co-defendants. WVSU's Board of Governors, the West Virginia State University Foundation and its subsidiary, West Virginia State University Foundation Properties, Inc., are also named as co-defendants.

Gray seeks $10 million in damages. She is represented by Barry J. Nace with the Washington, D.C. law firm of Paulson and Nace.

The case is assigned to Judge Louis H. "Duke" Bloom.

Other deaths

The deaths of two Bayer CropScience employees are directly linked to the August 2008 explosion. Barry Withrow was killed immediately, and Bill Oxley died six weeks later in Pittsburgh while being treated for third-degree burns.

Though the explosion occurred in the plant's Methomyl unit, an investigation by the U.S. Chemical Safety Board found it and the resulting fire had the potential of rupturing a nearby tank containing methyl isocyanate or MIC. Following release of the CSB findings, Bayer announced it was reducing its stockpile of MIC which killed an estimated 5,000 people in Bhopal, India, following a 1984 leak.

Earlier this year, Bayer CropScience paid the U.S. Occupational Safety and Health Administration nearly $145,000 in fines for citations OSHA issued relating to poor employee training, and operating procedures surrounding the explosion.

Kanawha Circuit Court case number 10-C-1662

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