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NO. 14-14-00377-CV

__________________________________________________________

IN THE COURT OF APPEALS

FOR THE FOURTEENTH DISTRICT OF TEXAS

HOUSTON, TEXAS

__________________________________________________________

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. 

ACCEPTED

14-14-00377-CV

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

4/8/2015 1:49:19 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 4/8/2015 1:49:19 PM CHRISTOPHER A. PRINE Clerk
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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
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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 

APPELLANT'S BRIEF 

Alarcon v. Alcolac 

Sept. 4, 2014
41 

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, 

APPELLANT'S BRIEF 

Alarcon v. Alcolac 

Sept. 4, 2014
42 

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. 

APPELLANT'S BRIEF 

Alarcon v. Alcolac 

Sept. 4, 2014
6 

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 . . . 

APPELLANT'S REPLY BRIEF 

Alarcon v. Alcolac 

Jan. 15, 2015