Shaffer v. Abbott Laboratories et al
Filing
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ORDER: Defendant Abbott Laboratories' Motion to Dismiss (Doc. 6 ) is granted with prejudice. Plaintiff's Count One Strict Liability is dismissed. Signed by Judge Steven P Logan on 1/29/2025. (KJ)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Creg Travis Shaffer,
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Plaintiff,
vs.
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Abbott Laboratories et al.,
Defendants.
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No. CV-24-03138-PHX-SPL
ORDER
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Before the Court is Defendant Abbott Laboratories’ Motion to Dismiss (Doc. 6),
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Plaintiff Creg Travis Shaffer’s Response (Doc. 11), and Defendant’s Reply (Doc. 19). The
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Court now rules as follows.1
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I.
BACKGROUND
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On January 9, 2024, Plaintiff Creg Travis Shaffer, an Arizona resident, suffered
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severe injuries while working on a job for Refrigeration Systems Construction and Service
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at Defendant Abbott Laboratories’ (“Defendant Abbott”) Abbott Nutrition manufacturing
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and distribution center. (Doc. 1 at 10–11). While replacing equipment on the center’s
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ammonia refrigeration system, ammonia gases were released into Plaintiff’s face and upper
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body, causing him to suffer severe chemical and temperature burns and inhalation injuries.
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(Id. at 11–12). Plaintiff alleges that the incident was reported to the Arizona Division of
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Because it would not assist in resolution of the instant issues, the Court finds the
pending motions are suitable for decision without oral argument. See LRCiv. 7.2(f); Fed.
R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).
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Occupational Safety and Health (“ADOSH”), and the ADOSH’s subsequent investigation
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revealed conditions that violated of the Arizona Occupational Safety and Health Act
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(“AOSHA”). (Id. at 12).
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On October 7, 2024, Plaintiff filed suit in Maricopa County Superior Court against
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Defendant Abbott and various unidentified defendants. (Id. at 6, 9). Plaintiff alleges strict
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liability and negligence claims. (Id. at 13–14). On November 11, 2024, Defendant Abbott
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removed the case to federal court. (Doc. 1). Defendant Abbott moved to dismiss Plaintiff’s
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strict liability claim on November 18, 2024. (Doc. 6).
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II.
LEGAL STANDARD
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“To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must
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meet the requirements of Rule 8.” Jones v. Mohave Cnty., No. CV 11-8093-PCT-JAT,
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2012 WL 79882, at *1 (D. Ariz. Jan. 11, 2012); see also Int’l Energy Ventures Mgmt.,
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L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 203 (5th Cir. 2016) (Rule 12(b)(6)
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provides “the one and only method for testing” whether pleading standards set by Rule 8
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and 9 have been met); Hefferman v. Bass, 467 F.3d 596, 599–600 (7th Cir. 2006) (Rule
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12(b)(6) “does not stand alone,” but implicates Rules 8 and 9). Rule 8(a)(2) requires that a
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pleading contain “a short and plain statement of the claim showing that the pleader is
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entitled to relief.” Fed. R. Civ. P. 8(a)(2). A court may dismiss a complaint for failure to
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state a claim under Rule 12(b)(6) for two reasons: (1) lack of a cognizable legal theory, or
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(2) insufficient facts alleged under a cognizable legal theory. In re Sorrento Therapeutics,
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Inc. Secs. Litig., 97 F.4th 634, 641 (9th Cir. 2024) (citation omitted). A claim is facially
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plausible when it contains “factual content that allows the court to draw the reasonable
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inference” that the moving party is liable. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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Factual allegations in the complaint should be assumed true, and a court should then
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“determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. Facts
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should be viewed “in the light most favorable to the non-moving party.” Faulkner v. ADT
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Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). “Nonetheless, the Court does not
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have to accept as true a legal conclusion couched as a factual allegation.” Jones, 2012 WL
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79882, at *1 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
III.
DISCUSSION
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Plaintiff’s Complaint alleges that he “is entitled to rely on strict liability in tort
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pursuant to A.R.S. §§ 23-403, 23-410, and 23-418.” (Doc. 1 at 13). Defendant Abbott
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argues that dismissal is warranted because AOSHA does not provide a private right of
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action, let alone a cause of action for strict liability. (Doc. 6-1 at 3). In his Response,
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Plaintiff argues that AOSHA does not specifically prohibit a private right of action and
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that, alternatively, breach of the statute constitutes negligence per se. (Doc. 11 at 2–3).
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a. Private Right of Action
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AOSHA neither expressly confers nor forecloses a private right of action. Nor has
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the Arizona Supreme Court ruled on the issue. In determining whether statutes provide a
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private right of action, Arizona courts “begin with the statutory language, which is the best
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and most reliable index of its meaning.” Burns v. City of Tucson, 432 P.3d 953, 955 (Ariz.
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Ct. App. 2018), as amended (Nov. 27, 2018) (internal quotation marks omitted). “[I]n the
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absence of express language, Arizona law more broadly implies a private right of action
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when consistent with the context of the statutes, the language used, the subject matter, the
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effects and consequences, and the spirit and purpose of the law.” Id. (internal quotation
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marks omitted).
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This Court is not convinced that AOSHA’s statutory scheme provides a private right
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of action. With respect to the language of the statute, several provisions indicate that the
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Arizona Division of Occupational Safety and Health is solely responsible for enforcement
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of the proscribed regulations and standards. See A.R.S. § 23-407 (“The division on behalf
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of the commission shall … [h]ave the authority to enforce all such standards or rules”);
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A.R.S. § 23-417 (providing an enforcement procedure handled by the director of ADOSH);
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A.R.S. § 23-418 (providing that “[t]he commission shall have authority to assess all civil
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penalties provided in this section” and all “civil penalties owed under this article shall be
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paid to the commission for deposit in the state general fund.”); see also A.R.S. § 23-423(I)
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(providing that the decision of board is final unless a party applies for a writ of certiori to
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the court of appeals and limiting the court’s review to the findings of and evidence before
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the division review board). To that end, it appears any employee rights are limited to the
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administrative adjudication process. See A.R.S. § 23-429 (affected employees may
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designate representation “for the purpose of proceedings before any administrative law
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judge or review board”); A.R.S. § 23-408(K) (employees that believe a regulation violation
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exists that threatens physical harm or danger may request an investigation by giving notice
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to the director); A.R.S. § 23-417(D) (“Any affected employee or employee representative
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may request a hearing to appeal the period allowed an employer to abate a particular
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violation pursuant to § 23-420”). Plaintiff has not cited, and the Court is not aware of, any
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case in which Arizona courts have found an implied right of action in the presence of
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similar statutory language.
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Moreover, in enacting AOSHA, the Arizona legislature adopted the Federal
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Occupational Safety and Health Standards (“OSHA”). Div. of Occupational Safety &
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Health of Indus. Comm’n of Ariz. v. Chuck Westenburg Concrete Contractors, Inc., 972
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P.2d 244, 251 (Ariz. Ct. App. 1998), as amended (Mar. 3, 1999). To that end, Arizona
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courts have “recognized that federal case law is persuasive in interpreting” the Arizona
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regulations. Id. It is widely accepted that OSHA does not provide a private right of action.
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Clark v. Wells Fargo Bank, 669 F. App’x 362, 363 (9th Cir. 2016); Wendland v. AdobeAir,
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Inc., 221 P.3d 390, 393 (Ariz. Ct. App. 2009). As such, this Court is not convinced that a
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private right of action is consistent “with the context of the statutes, the language used, the
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subject matter, the effects and consequences, and the spirit and purpose of the law.” Burns,
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432 P.3d at 955. On this basis, Plaintiff’s strict liability claim lacks a cognizable legal
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theory.
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b. Negligence Per Se
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To the extent that Plaintiff’s claim for strict liability is a claim that Defendant Abbott
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was negligent per se, as Plaintiff argues in his Response (Doc. 11 at 2), the Court finds that
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Plaintiff fails to state a claim upon which relief may be granted.
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“Negligence per se results from the violation of specific requirements of law or
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ordinance.” Deering v. Carter, 376 P.2d 857, 860 (Ariz. 1962). It refers to “those instances
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where certain acts or omissions constitute negligence without further inquiry [into] the
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circumstances or reasonableness of their occurrence.” Id. To that end, it “is not a cause of
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action separate from common law negligence. It is a doctrine under which a plaintiff can
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establish the duty and breach elements of a negligence claim based on a violation of a
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statute that supplies the relevant duty of care.” Craten v. Foster Poultry Farms Inc., 305 F.
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Supp. 3d 1051, 1054 n.2 (D. Ariz. 2018); see also Calyxt Inc. v. Tri-Rotor LLC, No. CV-
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20-01221-PHX-DLR, 2024 WL 2699938, at *8 (D. Ariz. May 24, 2024); Wing v. U-Haul
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Int’l, Inc., No. 1 CA-CV 18-0765, 2020 WL 773474, at *3 (Ariz. Ct. App. Feb. 18, 2020)
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(“The negligence per se doctrine allows a plaintiff to establish the elements of duty and
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breach in a negligence claim by proving the defendant violated the statute that supplies the
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relevant duty of care.”). As such, any claim Plaintiff has for negligence per se is subsumed
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into his negligence claim against Defendant. The Court finds that Plaintiff’s claim lacks a
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cognizable legal theory on this basis, as well.
IV.
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CONCLUSION
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All told, “whether a complaint states a plausible claim for relief will . . . be a context-
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specific task that requires the reviewing court to draw on its judicial experience and
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common sense.” Iqbal, 556 U.S. at 679. A district court should normally grant leave to
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amend unless it determines that the pleading could not possibly be cured by allegations of
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other facts. Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir.
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1990).
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Both of Plaintiff’s theories of liability fail to support a valid cause of action for his
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strict liability claim. As such, Plaintiff’s strict liability claim cannot be cured with further
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amendment and is thus futile. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)
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(“Futility of amendment can, by itself, justify the denial of a motion for leave to amend.”).
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Therefore, this claim is dismissed with prejudice.
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Accordingly,
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IT IS ORDERED that Defendant Abbott Laboratories’ Motion to Dismiss (Doc. 6)
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is granted with prejudice. Plaintiff’s Count One – Strict Liability is dismissed.
Dated this 29th day of January, 2025.
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Honorable Steven P. Logan
United States District Judge
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