Hicks v. The Boeing Company et al

Filing 180

REPORT AND RECOMMENDATIONS- GRANTING-IN-PART; DENYING-IN-PART 91 MOTION to Dismiss. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10 ) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 4/7/2014. Signed by Judge Sherry R. Fallon on 3/21/2014. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MARY J. HICKS, AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF ALVA HICKS, JR., AND
MARY J. HICKS INDIVIDUALLY,

)
)
)
)
)

Plaintiff,
v.

Civil Action No. 13-393-SLR-SRF

)
)
)

THE BOEING COMPANY, et al.,

)
)

Defendant.

)

REPORT AND RECOMMENDATION
I.

INTRODUCTION

Presently before the court in this asbestos-related personal injury action is a Motion to
Dismiss Plaintiffs Complaint ("Motion to Dismiss" or "Motion"), filed by The Boeing
Company ("Boeing"), pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief can be granted. (D.I. 92) The Plaintiff, Mary J. Hicks ("Plaintiff'),
opposes Boeing's Motion. (D.I. 95) For the reasons that follow, I recommend that the court
GRANT IN PART and DENY IN PART Boeing's Motion to Dismiss.
II.

BACKGROUND

Plaintiff filed this personal injury action against Boeing and other defendants on January
18, 2013, in the Superior Court of Delaware. (D.I. I, Ex. A) The Complaint alleges, in part:
a)
Decedent ALVA N. HICKS, JR. experienced occupational and
bystander exposure to asbestos while he served in the U.S. Army and U.S.
Airforce [sic] from 1941 to 1963 as a Major Retired Flyer and while he worked as
a self-employed construction worker from 1945 to 1947, at Dixie Bookbinding
Co. in Jackson, Mississippi as a shipper, and for the State of Mississippi in
Jackson, Mississippi as a Grain Inspector until he retired in 1973. Decedent
ALVA N. HICKS, JR. was exposed to asbestos-containing products and
equipment including, but not limited to, asbestos-containing pumps, valves,

packing, gaskets, insulation, boilers, turbines, cooling towers, pipe, paint, HVAC
equipment, engines, joint compound, brakes, clamps, and raw asbestos.
22.
Decedent ALVAN. HICKS, JR. was exposed to asbestos and/or asbestoscontaining products which were mixed, mined, manufactured, distributed, sold,
removed, installed and/or used by the Defendants.
(D.I. 73

~

21-22)

On March 11, 2013, the case was removed to this court by Defendant United
Technologies Corporation, pursuant to 28 U.S.C. § 1442(a)(l), the federal officer removal
statute. 1 (D.I. 1) On April 12, 2013, Plaintiff filed a Motion to Remand to State Court (D.I. 13),
which this court subsequently denied. (See D.I. 172)
Plaintiff filed her First Amended Complaint on July 11, 2013. (D.I. 73) On August 5,
2013, Boeing filed the pending Motion to Dismiss. (D.I. 91)
III.

LEGAL STANDARD
A complaint may be dismissed for "failure to state a claim upon which relief can be

granted." Fed. R. Civ. P. 12(b)(6). A complaint must contain "a short and plain statement of the
claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of
what the ... claim is and the grounds upon which it rests." Bell At!. Corp. v. Twombly, 550 U.S.
544, 545 (2007) (interpreting Fed. R. Civ. P. 8(a)) (internal quotations marks omitted). A
complaint does not need detailed factual allegations; however, "a plaintiff's obligation to provide
the 'grounds' of his entitle[ ment] to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do." Id at 545 (alteration in
original) (citation omitted). In other words, "a complaint must contain sufficient factual matter,

1

The federal officer removal statute permits removal of a state court action to federal court
when, inter alia, such action is brought against "[t]he United States or an agency thereof or any
officer (or any person acting under that officer) of the United States or of any agency thereof,
sued in an official or individual capacity for any act under color of such office." 28 U.S.C. §
1442(a)(1 ).
2

accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
When presented with a Rule 12(b)(6) motion to dismiss for failure to state a claim, a
court conducts a two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009). First, the court separates the factual and legal elements of a claim, accepting "all of the
complaint's well-pleaded facts as true, but [disregarding] any legal conclusions." I d. at 210-11.
Second, the court determines "whether the facts alleged in the complaint are sufficient to show
that the plaintiff has a 'plausible claim for relief."' Id. at 211 (quoting Iqbal, 556 U.S. at 679). In
assessing the plausibility of a claim, the court must '"construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief."' Fowler, 578 F.3d at 210 (quoting Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).
At bottom, "[t]he complaint must state enough facts to raise a reasonable expectation that
discovery will reveal evidence of [each] necessary element" of a plaintiffs claim. Wilkerson v.
New Media Tech. Charter Sch. Inc., 522 F.3d 315,321 (3d Cir. 2008) (internal quotation marks
omitted).

IV.

DISCUSSION

Boeing argues that the Complaint "exclusively consists of generalized, vague, and
factually devoid allegations and legal conclusions." (D.I. 92 at 2) Boeing further contends that
the Complaint is deficient under Rule 8 because it does not identifY any Boeing product to which
the Plaintiff was allegedly exposed or the location or time frame of such exposure. (Id. at 15)
Thus, Boeing maintains that the Complaint should be dismissed because it lacks sufficient
factual content to allow the court to draw a reasonable inference that Boeing is liable for the

3

misconduct alleged in the Complaint. (!d. at 2, 5, 12)
Plaintiff counters that the Complaint provides adequate notice of the claims asserted
against Boeing and, as such, it complies with the requirements of Rule 8. (D.I. 95 at 3) Plaintiff
argues that she is not required at this stage of the proceedings to identify the specific asbestoscontaining products in issue relative to each Defendant. (Id at 4-5) Plaintiff further contends that
Boeing's Motion should be denied because the Complaint meets the requirements of the
Delaware Superior Court's Standing Order No. I. (Id at 3 (citing Standing Order No. 1, In re:
Asbestos Litig., No. 77C-ASB-2 (Del. Super. Ct. Apr. 29, 2011 ))
As a preliminary matter, the court notes that "once a case has been removed to federal
court, it is settled that federal rather than state law governs the future course of proceedings."
Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 427 (1974). Thus, the

guidelines for asbestos actions in Delaware State courts are irrelevant in the context of the
pending Motion to Dismiss, as are Plaintiffs assertions concerning the Complaint's adequacy
under such guidelines.
Furthermore, the court is not persuaded by Boeing's argument that the Complaint should
be summarily dismissed because it does not identify the specific Boeing product that is the
subject of Plaintiffs claims. 2 See Coene v. 3M Co., 2011 WL 3555788, at *3 (W.D.N.Y. Aug.
11, 2011) ("[The defendants] ought to know whether they sold [the general type of product in
issue] between [a specific time period]. Consequently, they can frame an answer to the
Complaint. Additional information about the specific products at issue can be developed during
discovery."); Coleman v. Boston Scientific Corp., 2011 WL 1532477 at *2-5 (E.D. Ca. Apr. 20,
2011) (denying motion to dismiss products liability complaint which alleged that defendant

2

This finding is limited to the facts of this case.
4

manufactured defective surgical "mesh product," but did not identify a particular product:
"Imposing on plaintiffs the burden of specifically identifying a device by reference to a specific
product line or model number, without the benefit of discovery, could create an insurmountable
pleading burden in some cases."); Winslow v. WL. Gore & Assoc, Inc., 2011 WL 866184, at *2
(W.D. La. Jan. 21, 2011) ("[T]his is a products liability case where almost all of the evidence is
in the possession of defendant or other entities. Proof will necessarily be technical in nature and
it is likely impossible for plaintiff to state more specific allegations regarding defects in
manufacture and design without first having the benefit of discovery and of expert analysis,
neither of which is required in order to file suit."); Hemme v. Airbus, S.A.S., 2010 WL 1416468,
at *3 (N.D. Ill. Apr. I, 2010) (rejecting defendant's argument, in products liability action
involving defective electrical components in passenger jet, that the complaint's use of the
"generic word 'wiring"' was insufficient, and that plaintiff had to "identify the particular product
that was allegedly defective").
Plaintiff's Complaint asserts several theories of liability, as set forth in Counts III through
X, including: negligence (Count III), recklessness/punitive damages (Count IV), strict product
liability (Count V), fraudulent concealment (Count VI), fraudulent misrepresentation (Count
VII), conspiracy (Counts VIII and IX), and loss of consortium (Count X). It must be noted,
however, that deciphering these claims was no easy task. Indeed, the claims that the counts of the
Complaint purport to assert are not clearly pled. Furthermore, the briefs submitted by the parties
offered little help, as both parties failed to analyze each count under the Jqbal/Twombly standard
-a necessary step in resolving any Rule 12(b)(6) motion.
Plaintiff argues that the court should apply Mississippi law to the claims alleged in the
Complaint. (D.I. 73

~

23; D.I. 95 at 6) For purposes of the pending Motion, Boeing does not

5

dispute Plaintiffs choice of law. (See D.I. 92 at 2, 7) For the reasons that follow, the Complaint
contains sufficient factual allegations to support only some of Plaintiffs claims. Therefore,
Boeing's Motion to Dismiss should be granted in part and denied in part.

A. Negligence
In order to establish a claim for negligence under Mississippi law, a plaintiff must show:
(1) the defendant owed her a duty (2) the defendant breached that duty, and (3) plaintiff
sustained damages (4) that were proximately caused by defendant's breach. Crain v. Cleveland

Lodge 1532, Order of Moose, Inc., 641 So. 2d 1186, 1189 (Miss. 1994).
In the present case, Plaintiffs negligence claims, which appear in Count III, are
apparently based on defective products (i.e., products made out of, or containing asbestos) that
were allegedly mined, manufactured, distributed, and/or produced by the Defendants. (See

generally D.I. 73 at 5-7) Product liability actions in Mississippi are governed by the Mississippi
Products Liability Act ("MPLA"), Miss. Code Ann.§ 11-1-63(a). "Numerous district courts have
recognized that the MPLA subsumes common law negligence and misrepresentation claims
based on a defective product." Gardley-Starks v. Pfizer, Inc., 917 F. Supp. 2d 597, 602 (N.D.
Miss. 2013) (citing cases). 3 Therefore, to the extent Plaintiff asserts negligence claims arising
from alleged product design defects, they are dismissed for the same reasons as those MPLA
claims, as discussed below. To the extent Plaintiff asserts negligence claims arising from omitted
or inadequate product warnings, the claims are subsumed by the MPLA.

3

The MPLA was amended on March 17, 2014 to include the following relevant language (noted
in italics), acknowledging that the MPLA subsumes negligence claims, among others, based on a
defective product: "in any action for damages caused by a product, including, but not limited to,
any action based on a theory of strict liability in tort, negligence or breach of implied warranty,
except for commercial damage to the product itself: .... "Miss. Code Ann. § 11-1-63 (1972)
(amended 2014).
6

B. Strict Product Liability Actions Under Mississippi Law
The MPLA, which governs product liability actions in Mississippi, provides, in pertinent
part:
(a) The manufacturer or seller of the product shall not be liable if the claimant
does not prove by the preponderance of the evidence that at the time the product
left the control of the manufacturer or seller:
(i) 1. The product was defective because it deviated in a material way from the
manufacturer's specifications or from otherwise identical units manufactured to
the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate
warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other
express factual representations upon which the claimant justifiably relied in
electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to
the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product
proximately caused the damages for which recovery is sought.
Miss. Code Ann.§ 11-1-63(a).
Mississippi follows the strict liability approach for defective products set forth in
Restatement (Second) of Torts § 402A. See, e.g., Scardino v. Hopeman Bros., 662 So. 2d 640,
642 (Miss. 1995); Coca Cola Bottling Co. v. Reeves, 486 So. 2d 374, 377 (Miss. 1986); State

Stove Mfg. Co. v. Hodges, 189 So. 2d 113, 118 (Miss. 1966), cert. denied, 386 U.S. 912 (1967).
Section 402A defines who may be liable for a defective product as follows:
(1) One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to liability for
physical harm thereby caused to the ultimate user or consumer, or to his property,
if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.

Restatement (Second) ofTorts § 402A.

7

1. Design Defect
In order to state a claim for defective product design under Mississippi law, the plaintiff
must establish that at the time the product left the control of the manufacturer or seller: (1) the
product was designed in a defective manner; (2) the defective condition rendered the product
unreasonably dangerous to the user or consumer; and (3) the defective and unreasonably
dangerous condition of the product proximately caused the damages for which recovery is
sought. Miss. Code Ann. § ll-l-63(a). The plaintiff must also establish that:
(i)
The manufacturer or seller knew, or in light of reasonably available
knowledge or in the exercise of reasonable care should have known, about the
danger that caused the damage for which recovery is sought; and
(ii)
The product failed to function as expected and there existed a feasible
design alternative that would have to a reasonable probability prevented the harm.
Miss. Code Ann.§ 11-1-63(f).
In the present case, Plaintiffs claims for design defect, which appear in Counts III and V,
should be dismissed because they do not meet the pleading standard set forth in Rule 8. Plaintiff
alleges in her Complaint that Defendants mined, manufactured, distributed and/or produced
asbestos or asbestos-related materials to which Mr. Hicks was exposed (D.I. 73
these products were "inherently dangerous" (id.

~

~~

22, 28), that

37), that Defendants "neither packaged nor

provided [the products] in a method proper for [their] intended use" (id

~

40), that Defendants

knew or should have known that the use of these products was hazardous to the health of
workers such as Mr. Hicks (id.

~~

31, 43, 4 7), and finally, as a proximate result of these acts,

Plaintiff and Mr. Hicks suffered damages (id.

~~

29, 32, 35, 41, 45, 59).

The Complaint alleges in conclusory fashion that the products were "unreasonably
dangerous," but fails to assert that the products were defective in design or even suggest
generally the nature of any defect. The complaint fails to explain - even in the simplest terms -

8

what the defect is. 4 Moreover, the Complaint fails to allege that there existed a feasible design
alternative that would have had a reasonable probability of preventing the harm. See Miss. Code
Ann. § 11-1-63(±). Consequently, Plaintiffs claim for design defect should be dismissed without
prejudice. 5 See Chatman v. Pfizer, Inc., 2013 WL 1305506, 4 (S.D. Miss. March 28, 2013)
(holding that plaintiff did not properly plead a design defect claims because she failed to
"identify the defect in the design" or "allege that a viable alternative design exist[ed]"); Deese v.
Immunex Corp., 2012 WL 463722, at *3 (S.D. Miss. Feb. 13, 2012) (explaining that conclusory
allegations that defendants '"designed and manufactured . . . an unreasonably dangerous
pharmaceutical product,' that was 'unsafe and harmful to Plaintiff[,]'" unaccompanied by any
factual support, including what was defective about the design, failed to state claim for design
defect).

2. Failure to Warn
A product may be found defective under Mississippi law if it "fail[s] to contain adequate
warnings." Miss. Code Ann. § 11-1-63(a)(i)(2). See also Swan v. !P., Inc., 613 So. 2d 846, 852
(Miss. 1993) ("Lack of an adequate warning is a defect which makes a product unreasonably
dangerous for strict liability purposes." (citations omitted)). Therefore, manufacturers and sellers
have "a duty, as a matter of law, to warn of any known hazards" associated with their products.
Scardino, 662 So. 2d at 646 (citing Swan, 613 So. 2d at 852).
Plaintiff has adequately alleged in Counts III and V claims for failure to warn consistent
with the requirements of Rule 8. Plaintiff alleges in her Complaint that Defendants, including
Boeing, mined, manufactured, distributed, and/or produced asbestos or asbestos-related materials
4

In fact, the words "defect" or "defective" do not appear anywhere in the Complaint.

5

It is well-settled that when a complaint is dismissed for lack of factual specificity, the plaintiff
"should be given a reasonable opportunity to cure the defect, if [s]he can, by amendment of the
complaint ... ."Shane v. Fauver, 213 F.3d 113, 116 (3rd Cir. 2000) (citation omitted)
9

to which Mr. Hicks was exposed (D.I. 73

~~

22, 28), that these products were "inherently

dangerous" and "neither packaged nor provided in a method proper for [their] intended use" (id.
~~

37, 40), that Defendants knew or should have known that the use of these products was

hazardous to the health of workers such as Mr. Hicks (id.

~~

adequately warn Mr. Hicks as to the hazards involved (id.

31, 43, 4 7), that Defendants failed to
~~

31, 34, 43, 47), and finally, as a

proximate result of these acts, Plaintiff and Mr. Hicks suffered damages (id.

~~

29, 32, 35, 41,

45, 59). These allegations are sufficient to state a claim for failure to warn and, therefore,
Boeing's Motion to Dismiss Plaintiffs failure to warn claims should be denied.
At this stage of the proceedings, the court addresses only the adequacy of the pleadings.
Whether Plaintiffs failure to warn claims have merit is an issue reserved for the summary
judgment stage or trial.
3. Breach of Express Warranty

Plaintiffs claims for breach of express warranty, which appear in Count V, should be
dismissed. In order to state a claim for breach of express warranty, a plaintiff must establish that
"the product breached an express warranty or failed to conform to other express factual
representations upon which the claimant justifiably relied in electing to use the product." Miss.
Code Ann.§ 11-1-63(a)(i)(4). The Complaint includes no specific facts in support ofPlaintiff's
breach of warranty claim. Instead, Plaintiff simply alleges that the Defendants "warranted the
asbestos products for their intended purpose and use" and "violated this warranty [because] the
product was neither packaged nor provided in a method proper for its intended use." (D.I. 73

~

40) Plaintiff fails to identify any specific express warranty, or any specific factual representation
by any Defendant upon which she or Mr. Hicks relied. Consequently, Plaintiffs claims for
breach of express warranty should be dismissed without prejudice. See Garcia v. Premier Home

10

Furnishings, 20I3 WL 40I5062, at *6 (S.D. Miss. Aug. 6, 20I3) (applying Rule I2(b)(6)

analysis and finding no possibility of recovery where complaint contained no specific facts
regarding an express warranty).

4. Punitive Damages Under the MPLA
Under Mississippi law, the standard for punitive damages "in any action," including those
under the MPLA, is as follows:
Punitive damages may not be awarded if the claimant does not prove by
clear and convincing evidence that the defendant against whom punitive damages
are sought acted with actual malice, gross negligence which evidences a willful,
wanton or reckless disregard for the safety of others, or committed actual fraud.
Miss. Code Ann.§ II-I-65(l)(a).
In Count IV, Plaintiff alleges that Defendants "knew that asbestos exposure could result
in serious injury," but failed to take adequate steps to warn others of the risks of exposure. (D.I.
73

~~

3I, 33-34) Plaintiff further alleges that Defendants failed to adequately package, distribute

and use asbestos in a manner that would minimize the escape of asbestos fibers, and failed to
remedy such failures, and that such conduct was wanton, willful, and displayed a reckless
indifference to the health and safety of Mr. Hicks. (!d.

~

34) Such allegations, if found to be true,

could support an award of punitive damages. Therefore, Boeing's Motion to Dismiss Plaintiff's
claim for punitive damages should be denied.

C. Fraudulent Concealment and Misrepresentation
To assert a claim for fraud (or deceit) under Mississippi law, a plaintiff must establish the
following elements:
(1) a representation; (2) its falsity; (3) its materiality; 4) the speaker's knowledge
of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by
the person and in the manner reasonably contemplated; (6) the hearer's ignorance
of its falsity; (7) his reliance on the truth; (8) his right to rely thereon; (9) his
consequent proximate injury.
II

Black v. Carey Canada, Inc., 791 F. Supp. 1120, 1123 (S.D. Miss. 1990) (quoting Whittington v.
Whittington, 535 So. 2d 573, 585 (Miss. 1988)). "To state a claim for fraud, a Complaint must
allege all nine of these elements." Peters v. Metro. Life Ins. Co., 164 F. Supp. 2d 830, 834 (S.D.
Miss. 2001). See also Levens v. Campbell, 733 So. 2d 753, 761-62 (Miss. 1999). "In order to
establish fraudulent misrepresentation, the elements of fraud must be proven." Levens, 733 So.
2d at 762 (citing Spragins v. Sunburst Bank, 605 So. 2d 777,780 (Miss. 1992)). In order to prove
fraudulent concealment, the plaintiff must demonstrate that the (1) defendant took some action,
affirmative in nature, (2) which was designed or intended to prevent, (3) and which did prevent,
(4) the discovery of the facts giving rise to the fraud claim. Davidson v. Rogers, 431 So. 2d 483,
485 (Miss. 1983).
"In alleging fraud ... , a party must state with particularity the circumstances constituting
fraud .... " Fed. R. Civ. P. 9(b). The purpose of the heightened pleading standards is to require
the plaintiff to "state the circumstances of the alleged fraud with sufficient particularity to place
the defendant on notice of the precise misconduct with which it is charged." Frederico v. Home

Depot, 507 F.3d 188, 200 (3d Cir. 2007); see also Seville Indus. Mack Corp. v. Southmost Mack
Corp., 742 F.2d 786, 791 (3d Cir. 1984). To satisfy this heightened standard, plaintiffs claiming
fraud must allege, at a minimum, the "who, what, when, where and how" of the events at issue,
"or otherwise inject precision or some measure of substantiation into a fraud allegation." In re

Suprema Specialties, Inc. Sec. Litig., 438 F.3d 256, 276 (3d Cir. 2006); Frederico, 507 F.3d at
200. Where allegations of fraud are brought against multiple defendants, "the complaint must
plead with particularity ... the [specific] allegations of fraud" applicable to each defendant.

MDNet, Inc. v. Pharmacia Corp., 147 F. App'x 239,245 (3d Cir. 2005) (citation omitted).

12

In the present case, Counts VI and VII allege generally that the Defendants, as a group,
were aware that exposure to asbestos was hazardous, and they intentionally misrepresented
and/or concealed the dangers of asbestos from Mr. Hicks, knowing that he would be exposed to
asbestos. (See D.I. 73 at 10-12) The alleged fraudulent concealment and misrepresentations are
pled collectively as to all Defendants, and the Complaint fails to identify which Defendants may
have said what, when, and where. (See id) Moreover, while Plaintiff acknowledges in her
answering brief the elements that are required to plead a prima facie case of fraud, she fails to
explain how all of the elements are satisfied in the instant case. (See D.I. 95 at 9) Plaintiffs
allegations fall short of establishing fraud and lack the specificity that is required by Rule 9(b ).
Consequently, Plaintiffs fraud claims should be dismissed without prejudice.
D. Conspiracy

Under Mississippi law, a conspiracy is "a combination of two or more persons to
accomplish an unlawful purpose or to accomplish a lawful purpose unlawfully, the persons
agreeing in order to form the conspiracy," and the "persons must agree . . . in order for a
conspiracy to exist." Brown v. State, 796 So.2d 223, 226-27 (Miss. 2001). See also Black v.
Carey Canada, Inc., 791 F. Supp. 1120, 1124 (S.D. Miss. 1990); Shaw v. Burchfield, 481 So. 2d
247, 255 (Miss. 1985).
In the present case, Plaintiffs conspiracy claims, which appear in Counts VIII and IX,
should be dismissed because they consist of mere conclusory allegations. The Complaint alleges
generally that the Defendants, as a group, "knowingly and wilfully conspired," and "aided and
abetted other manufacturers of asbestos products," to conceal and misrepresent the risks of
asbestos exposure from Mr. Hicks and, "[a]s a result of this conspiracy, [Mr. Hicks] was exposed
to asbestos and suffered[] injuries." (D.I. 73

~~50-56)

13

Even ifthese conclusory allegations were

to be credited for purposes of the pending Motion, Plaintiff has not alleged the elements of a civil
conspiracy claim. "It is elementary that a conspiracy requires an agreement between the coconspirators." Gallagher Bassett Servs., Inc. v. Jeffcoat, 887 So. 2d 777, 786 (Miss. 2004) (citing
Brown, 796 So. 2d at 226-27). The Complaint, however, includes no factual allegations of any
agreement among the Defendants. Furthermore, Plaintiff has not alleged how this conspiracy
operated or existed with any specificity. Rather, Plaintiff merely asserts general allegations of
conspiracy. This is not sufficient. See Feliz v. Kintock Group, 297 F. App'x 131, 136 (3d Cir.
2008) (explaining that "mere 'conclusory allegations of concerted action' are insufficient to
satisfy the notice-pleading standard" for a civil conspiracy claim (citation omitted)).
Consequently, the conspiracy claims should be dismissed without prejudice because Plaintiff
does not allege facts giving rise to a plausible inference of the existence of a civil conspiracy.
E. Loss of Consortium
Under Mississippi law, a loss of consortium claim derives its viability from the injured
spouse's claim for injuries. See McCoy v. Colonial Baking Co., 572 So. 2d 850, 854 (Miss.
1990). As discussed previously, the Complaint contains sufficient factual allegations to support
certain of Plaintiff's claims, which allegedly caused Mr. Hicks to suffer various InJUries.
Consequently, Count X of the Complaint states a viable claim for loss of consortium.
V.

CONCLUSION
For the foregoing reasons, I recommend that the court grant in part and deny in part

Boeing's Motion to Dismiss. Specifically, Boeing's Motion should be granted as to Plaintiff's
claims for design defect (in Counts III and V) - and negligence claims other than for failure to
warn (Count III), breach of express warranty (Count V), fraudulent concealment (Count VI),

14

fraudulent misrepresentation (Count VII), and conspiracy (Counts VIII and IX). 6 Plaintiffs
remaining claims under Counts III, IV, V, and X should not be dismissed.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen ( 14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to ten (10)
pages each. The failure of a party to object to legal conclusions may result in the loss of the right
to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.l
(3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded. uscourts.gov.

Dated: March 21, 2014

6

The court does not address amendment of the pleadings as there is no pending application for
such relief.
15