Eastridge v. Goodrich Corporation et al

Filing 155

MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 9/27/2013, re #50 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Goodrich Corporation, Shell Oil Company, Georgia Gulf Corporation, American Chemistry Council, PolyOne Corporation, and PPG Industries, Inc.; #62 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by The Society of the Plastics Industry, Inc.; #81 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Airco, Inc.; #100 MOTION for Leave to File Amended Complaint filed by Pamela Eastridge, #73 MOTION to Dismiss for Lack of Jurisdiction filed by The Society of the Plastics Industry, Inc, and several MOTIONS for Joinder. A separate Order will be entered in accordance with this Opinion.cc: Counsel (RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

PAMELA M. EASTRIDGE, Executrix of the
the Estate of Joseph E. Morris, Jr.

v.

PLAINTIFF

CIVIL ACTION NO. 3:12CV-862-S

GOODRICH CORPORATION, et al.

DEFENDANTS

MEMORANDUM OPINION

This matter is before the court for consideration of the following motions:
1. Motion of defendants American Chemistry Council, Georgia Gulf Corporation, Goodrich
Corporation, PolyOne Corporation, PPG Industries, Inc. and Shell Oil Corporation (collectively
herein “ACC”) to dismiss the Complaint (DN 50).
The following defendants have joined in the motion: Olin Corporation, Monsanto Company,
Chevron U.S.A., Inc., Gulf Oil Limited Partnership, Air Products and Chemicals, Inc., Momentive
Specialty Chemicals, Inc., Georgia-Pacific LLC, Ethyl Corporation, ConocoPhillips Company, Sasol
North America, Inc., Goodyear Tire & Rubber Company, Honeywell International, Inc., Occidental
Chemical Corporation, Society of the Plastics Industry, Inc., EPEC Polymers, Inc., Tenneco, Inc.,
Dow Chemical Company, and Union Carbide Corporation.1

1

When referring to the motion of “ACC,” the court is referring to the motion filed by the six entities named in the motion
itself as well as the eighteen other entities who have joined in it. SPI and Airco are the only defendants to file separate motions.
Many of their arguments mirror those made in the ACC motion. They additionally argue that the complaint fails to allege facts
sufficient to state a claim against them particularly. Defendants Panasote, Inc. and Meggett Safety Systems, Inc. have not appeared
in the case.

2. Motions of defendants, Society of the Plastics Industry, Inc. (“SPI”), and Airco, Inc.
(“Airco”), to dismiss the complaint for failure to state a claim as to them (DNs 62; 81).
3. Motion of defendant SPI to dismiss for lack of personal jurisdiction (DN 73).
4. Motion of the plaintiff, Pamela M. Eastridge (“Eastridge”), as Executrix of the Estate of
Joseph E. Morris, Jr., for leave to file an Amended Complaint (DN 100).
Eastridge alleges that the decedent, Joseph E. Morris, Jr., was exposed to polyvinyl chloride
(“PVC”) and PVC-containing products during his employment with Goodrich Corporation. Morris
worked at the B.F. Goodrich Plant in Louisville, Kentucky from approximately 1964 to 1980.
Vinyl chloride (“VC”) is a man-made compound processed into PVC. The Complaint
alleges that as a result of his exposure to VC, Morris developed cancer of the liver (angiosarcoma).
He was purportedly diagnosed with chemical exposure-related angiosarcoma in June 2011 and died
in November 2011.
Morris’ Executrix, Eastridge, filed this action in the Jefferson County, Kentucky, Circuit
Court on November 26, 2012 naming twenty-seven defendants. The action was removed to this
court under our diversity jurisdiction, as none of the defendant entities is a citizen of Kentucky.
ACC has moved to dismiss the complaint on the ground that it fails to state a claim upon which
relief may be granted, in accordance with Fed.R.Civ.P. 12(b)(6). Eastridge obtained an extension
of time in which to respond to the motions. Instead of responding, she filed a motion for leave to
file an amended complaint. The defendants objected to the proposed amendment on the ground of
futility. We are thus asked to evaluate whether the proposed amendments cure what the defendants
claim are fatal deficiencies in the original pleading.

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In response to the contention that amendment would be futile, Eastridge responds in
summary fashion, in two pages, that she believes she has stated viable claims against the defendants.
The defendants contend, and Eastridge agrees, that the proposed ninety-two-page Amended
Complaint is virtually identical to the complaint in Hogan v. Goodrich Corp., No. 3:05CV-159-C,
litigated before Judge Jennifer Coffman in this district.2
Judge Coffman did much of the spade work in addressing the viability of nearly identical
claims now before this court. We have reviewed the Complaint, proposed Amended Complaint in
this case, and the opinions of Judge Coffman in the prior litigation, and find that a number of similar
rulings are warranted. The motions to dismiss presently before this court also raise the spectre of
dismissal in light of the standard for scrutiny of pleadings under Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). This aspect of the motions to
dismiss was not before Judge Coffman, as Twombly and Iqbal had not yet been decided.
When a motion to dismiss is filed under Rule 12(b)(6), the Court must look to the Complaint
and determine whether it states a viable claim for relief. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 570. A plaintiff must
do more than offer an “unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. A
pleading which offers mere “labels and conclusions” or “formulaic recitations of a cause of action”
is insufficient under the Iqbal/Twombly standard. See, Id. Further, the court “need not accept the
truth of legal conclusions or draw unwarranted factual inferences.” Republic Bank & Trust Co. v.
Bear Stearns & Company, Inc., 707 F.Supp.2d 702, 707 (W.D.Ky. 2010), aff’d, 683 F.3d 239 (6th

2

The defendants refer to the proposed Amended Complaint as a “form complaint” used routinely in such actions.

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Cir. 2012)(citing DirectTV v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) and Gregory v. Shelby
County, 220 F.3d 433, 446 (6th Cir. 2000)). However, the Iqbal/Twombly standard does not demand
detailed factual allegations, but rather, simply sufficient factual allegations to raise the right to relief
above the speculative level. Twombly, 550 U.S. at 555.
The original Complaint in this case was filed in the Kentucky state court. It is fairly early
in the litigation process in this court, as much time has been spent attempting to parse the claims
through 12(b)(6) motions. The court finds that Eastridge should be permitted leave to amend the
Complaint to the extent that the claims are not clearly subject to dismissal as a matter of law. We
find that it would be futile to grant leave to amend certain of the claims – Counts I, II, III, VII, VIII,
and IX in part – for the reasons stated herein.
Within the opening paragraphs of the proposed Amended Complaint, Eastridge sets out a
grouping of the defendants which we will refer to in this opinion as the “Employers,” the
“Manufacturer/Suppliers,” and the “Conspirators.” The Amended Complaint states, in part:
a. Morris was employed by defendant, B.F. Goodrich Company at its Louisville,
Kentucky, manufacturing plant. In or about 1993, B.F. Goodrich Company spun off
its vinyl chloride business, to the Geon Company...The Geon Company has become
PolyOne Corporation. B.F. Goodrich Company has become B.F. Goodrich
Corporation...The Geon Company, PolyOne Corporation, and Goodrich Corporation
are identified collectively as “B.F. Goodrich.” Plaintiff’s claims against
B.F.Goodrich are for tort of outrage, intentional tort and fraud, as well as tortious
misconduct in the furtherance of a conspiracy with the other defendants prior to and
after Morris’ employment.
b. The Manufacturer/Supplier defendants, produced the vinyl chloride to which
decedent was exposed during the course of his employment at defendant B.F.
Goodrich. These defendants engaged in a breach of duty to warn, product liability
violations and fraudulent concealment by taking active steps to conceal the health
hazards associated with vinyl chloride; conspired with B.F. Goodrich to commit
outrage, an employer intentional tort and fraud; and provided substantial assistance
to, so as to aid and abet, B.F. Goodrich in the commission of the employer
intentional tort and fraud; and
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c. The remaining defendants, who conspired with B.F. Goodrich to commit the
employer intentional tort and employer fraud, entered into agreements with the
Manufacturer/Supplier defendants to conspire to fraudulently conceal the hazards of
vinyl chloride; and who took actions to substantially aid and abet the
Manufacturer/Supplier defendants.
Proposed Amend. Compl., 2(a)-(c).3
I.
We find it best to first identify what portion of the Amended Complaint we conclude is
viable. Eastridge has plead products liability causes of action sufficient to survive a motion to
dismiss at this time. We approve of and adopt the principles discussed by Judge Coffman with
respect to products liability claims under Kentucky law, and recite portions of DN 104 from the
Hogan case in full.
Count IV claims a breach of the duty to warn by the Manufacturer/Suppliers, Count V asserts
general claims for product liability, and Count VI claims a breach of implied warranty in tort. All
three of these Counts are subsumed in the theories of strict liability and negligence, forms of
product liability claims recognized by Kentucky courts . Ostendorf v. Clark Equip. Co., 122 S.W.3d
530, 535 (Ky.32003). With regard to the Manufacturer/Suppliers, Eastridge has stated valid
products liability claims in the form of both strict liability and negligence. Strict liability in tort
under Section 402A of the Restatement (Second) of Torts was recognized in Dealers Transport Co.,
Inc. v. Battery Distributing Co., 402 S.W.2d 441 (Ky. 1965). It provides for a cause of action for
physical harm to persons or property caused by a product defect against a manufacturer or
commercial seller of a product. Negligence is another ground for liability for personal injury or
property damage caused by the manufacturer or seller of a product. C.D. Herme,Inc. v. R.C. Tway
3

Eastridge lists the Manufacturer/Suppliers in ¶ 3, and the alleged Conspirators in ¶ 4. We need not list them all here for
purposes of this opinion.

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Co., 294 S.W.2d 534 (Ky. 1956). A plaintiff in a products liability case may recover under the
theories of defective design, defective manufacture, or failure to warn. Clark v. Hauck Mfg. Co.,
910 S.W.2d 247 (Ky. 1995).
Privity of contract is not necessary for claims under the strict liability and negligence
theories. Allen v. Coca-Cola Bottling Co.,403 S.W.2d 20 (Ky. 1966). The statute of limitations for
both strict liability and negligence claims is governed by KRS 413.140(1)(a) in conjunction with the
Kentucky discovery rule adopted in Louisville Trust Co. v. Johns-Manville Products, Inc., 580
S.W.2d 497 (Ky. 1979) which provides that a cause of action does not accrue until “a plaintiff
discovers or in the exercise of reasonable diligence should have discovered not only that he has been
injured but also that his injury may have been caused by the defendant’s conduct.” Id.4
To state a strict liability claim, a plaintiff must allege that the product was in a defective
condition and unreasonably dangerous such that an ordinarily prudent company engaged in the
manufacture of that product, being fully aware of the risk, would not have put it on the market.
Tobin v. Astra Pharma. Prods., Inc., 993 F.2d 528, 536 (6th Cir. 1993)(applying Kentucky law).
Negligence claims focus on the conduct of the manufacturer to discern whether the
manufacturer could have foreseen the harm to the plaintiff, and did he act reasonably to prevent that
harm. Ostendorf , 122 S.W.3d at 535.
Eastridge has sufficiently alleged products liability claims under strict liability and
negligence. She has alleged that the Manufacturer/Suppliers supplied VC, an unreasonably
dangerous product, due to its design and lack of adequate warnings, to Morris’ employer, that Morris
4

See also, Fluke Corp. v. LeMaster, 306 S.W.3d 55 (Ky. 2010). It is alleged that Morris was diagnosed with chemical
exposure-related angiosarcoma in June 2011, he died in November, 2011, and the state suit was filed November 26, 2012. No issue
has been raised as to the timeliness of Eastridge’s claim in light of the one-year statute of limitations. Therefore, the products claims
will be allowed to be filed.

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was a foreseeable user of that product, and that the product caused his injury and death. See
Radcliffe Homes, Inc. v. Jackson, 766 S.W.2d 63 (Ky. App. 1989) citing Restatement (Second) of
Torts, § 402A (1965). She alleges that the Manufacturer/Suppliers knew that VC products were
inherently and unreasonably dangerous and defective when ingested, breathed, or absorbed, but
failed to warn of these dangers (proposed Amend. Compl., ¶ 256). She alleges that the VC products
failed to comply with the representations and warranties made about their intended uses (proposed
Amend. Compl., ¶¶ 258; 259). She also alleges that the products were defective when they left the
defendants’ control (proposed Amend. Compl., ¶ 242). These allegations are sufficient to state a
products liability claim.
Relying on the “concert of action” theory from Section 876 of the Restatement (Second) of
Torts, as recognized in Farmer v. Newport, 748 S.W.2d 162 (Ky.Ct. App. 1988), Eastridge identified
a group of Manufacturers/Suppliers, without identifying a particular manufacturer or supplier as
being responsible for the injury. See Dawson v. Bristol Labs., 658 F. Supp. 1036 (W.D. Ky. 1987)
(applying Kentucky law). In order to state a claim under a “concert of action” theory, a plaintiff
must set forth three elements: First, plaintiffs must identify the product causing the harm and prove
that the defendants’ acts in marketing and promoting the allegedly defective product were a
substantial factor in causing the plaintiff’s injuries...Second, plaintiffs must establish that the
defendants acted by cooperative or concerted activities...Finally, plaintiffs must prove defendants
contravened a particular standard of care. Id. at 1039-40. The plaintiff alleged the defendants
manufactured and supplied VC which caused Morris’ death and that they failed to adequately warn
of the dangers of VC. Eastridge alleges that the defendants agreed to withhold information, and did
so, such that they failed to adequately warn. Finally, Eastridge alleges that the defendants were

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negligent in failing to warn of the dangers of VC of which they were or should have been aware, and
breached implied warranties with respect to the product. The plaintiff may or not ultimately be able
to prove “concert of action.” However, her allegations are sufficient under Kentucky caselaw to
permit the filing of the claim. The sufficiency of the factual allegations in light if Iqbal and
Twombly may be revisited, if appropriate, upon the filing of the redacted Amended Complaint.
Additionally, the defendants contend that all of Eastridge’s claims against Morris’ employer,
Goodrich Corporation, are barred by the Kentucky Workers’ Compensation Act., KRS 342.690;
citing Philadelphia Indem. Ins. Co. v. Morris, 990 S.W.2d 621, 624 (Ky. 1999). Eastridge has
responded that there is nothing in the record to indicate that Goodrich participated in the Kentucky
Workers’ Compensation plan. We must leave this point to be further developed another day, after
the redacted Amended Complaint has been filed.
Count IX alleges that the Conspirators aided and abetted the Manufacturer/Suppliers in the
commission of the products liability torts alleged in Counts IV, V, and VI, and in the commission
of fraud alleged in Count VII. Count VII will not be permitted to be filed, for reasons stated later
in this opinion. Therefore, that portion of Count IX alleging aiding and abetting fraud will similarly
not be permitted. While there is no separate tort of aiding and abetting in Kentucky, Count IX will
be permitted to the extent that the claim alleges that the Conspirators acted in concert with or gave
substantial assistance to the Manufacturer/Suppliers. For example, Count IX alleges, among other
things, that the Conspirators provided substantial assistance to the Manufacturer/Suppliers by
limiting various disclosures of the dangers of VC exposure, and failing to conduct tests to identify
safe exposure levels. (proposed Amend Compl., ¶ 293).

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Counts X and XI do not state claims for relief, but rather request punitive damages and
general damages, respectively. As such, the court will permit these counts to be filed.
II.
Leave to amend will be denied as to these remaining claims. They fail to cure deficiencies
in the original claims, and therefore the claims will be dismissed.
Counts I (alleging fraud by the employers) and VII (alleging fraud by the
Manufacturer/Suppliers) in the proposed Amended Complaint fail to state viable claims, despite the
addition of a wealth of allegations of fact and law in the proposed Amended Complaint.
Eastridge’s fraud claims are barred by Kentucky’s ten-year statute of repose. Kentucky has
a five-year statute of limitations for fraud claims running from the date of accrual, which begins on
the date of discovery of the fraud. KRS 413.120(12). In all cases, however, the claim must be
commenced no later than ten years from the perpetration of the fraud. KRS 413.130(3). The
ten-year bar of fraud actions applies even if the injured party did not know of the fraud before the
time limit expires.
Eastridge alleges that B. F. Goodrich fraudulently concealed material facts about the health
hazards associated with VC. She alleges that the fraud claim did not accrue until Morris was
diagnosed and died, because the harm had not been suffered until that time. However, the alleged
fraud occurred, at the very latest, when Morris ceased working at the Louisville plant. Therefore,
Eastridge’s fraud claims are barred by the ten-year fraud statute of repose and must be dismissed.
The ten-year statute of repose for fraud claims is valid under the Kentucky Constitution. In
Saylor v. Hall, S.W.2d 218 (Ky. 1973), the Kentucky Supreme Court held that a statute of repose
barring a claim before it exists is impermissible if it destroys a constitutionally protected right.

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Fraud claims are different from the negligence claims presented in Saylor, however. In fact, the
Saylor court distinguished fraud claims, noting that with fraud, the injury – the denial of a legally
protected interest – is immediate, whereas no harm in Saylor had occurred before the time expired.
The plaintiff has not shown that the fraud statute of repose is unconstitutional under the state
Constitution’s “open courts” provision. No Kentucky court has decided the issue. This court finds
that, if presented with the issue, Kentucky courts would find the fraud statute of repose valid under
the state Constitution.
Count I attempts to allege “outrage” under Kentucky law, essentially urging that the
employers’ acts in concealing the danger of VC and exposing Morris to known carcinogens were
“outrageous.” (See, proposed Amend. Compl., ¶¶ 154; 165; 166 where Eastridge alleges intentional
and reckless conduct by Goodrich, specifically providing false information or deliberate
misinformation to reassure Morris). However, under Kentucky law, “[t]he tort of outrage will lie
when the defendant’s conduct was intended only to cause extreme emotional distress.” Lovins v.
Hurt, No. 11-216-JBC, 1011 WL 5592771 (E.D.Ky. Nov. 16, 2011). The alleged facts do not
support such a claim.
Count I also attempts to allege an “intentional tort” by urging that concealing the dangers
of VC and exposing Morris to VC in the workplace evidences that “B.F. Goodrich acted with
deliberate intent to cause Morris to suffer injury.” Broken down into its components, however,
Eastridge merely alleges that Goodrich intentionally committed fraud and intentionally exposed
Morris to an unreasonably dangerous product. The fraud claims are barred for the reasons
previously stated. Products liability claims are made elsewhere in the Complaint. The court does
not find factual allegations to support an inference that the defendants acted with deliberate intent

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to cause Morris’ death - the “injury” which Eastridge contends was intended and for which Eastridge
has filed suit. The court need not accept unwarranted factual inferences or accept Eastridge’s legal
conclusions. 707 F.Supp.2d at 707.
Counts II and VIII allege counts of conspiracy by the defendants. A civil conspiracy is not
a free-standing claim. Smith v. Univar USA, Inc., No. 12-134-ART, 2013 WL 1136624 (E.D.Ky.
Mar. 18, 2013). Rather, it allows for a recovery from multiple defendants for an underlying
intentional tort. Id., citing, Montogomery v. Milam, 910 S.W.2d 237, 239 (Ky. 1995) and Peoples
Bank of N. Ky. v. Crowe Chizek and Co. LLC, 277 S.W.3d 255, 261 (Ky.Ct.App. 2008).
Eastridge alleges that fraud, intentional tort, and violations of the Kentucky Products
Liability Act underlie the conspiracy claims. To the extent that the conspiracy claims are based on
fraud and intentional tort, they must be dismissed, as these substantive claims were found barred or
otherwise insufficient to state a claim. Further, the court has been shown no authority that a product
liability claim may form the basis for a claim of civil conspiracy. In fact, in Smith, supra, a case also
involving product liability claims addressing injury from toxic chemicals, the court dismissed a
claim for civil conspiracy. See also, Harris v. Brush Engineered Materials, Inc., No. 1:04CV598,
2005 WL 3806048 (S.D. Miss. Feb. 18, 2005)(dismissing claims for civil conspiracy where
plaintiff-victims were exposed to beryllium dust); Ruth v. A.O. Smith Corp., No. 1:04-CV-18912,
2005 WL 2978694 (N.D. Ohio Oct. 11, 2005)(civil conspiracy cannot succeed when premised on
a failure to warn). The conspiracy claims are deficient, and the proposed amendments to the claims
will not be permitted to be filed.
Count III alleges aiding and abetting the conduct of the Employers by all of the other
defendants. Kentucky courts have not recognized a separate tort of aiding and abetting. While

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concerted action is recognized by the Restatement (Second) of Torts, § 876(b), and was permitted
to be alleged in connection with the product liability claims (Count IX), no separate aiding and
abetting claim is viable under Kentucky law.
To the extent that defendants Society of the Plastics Industry, Inc. and Airco, Inc. have filed
motions (DN 62; 73; 81) which extend beyond the arguments concerning the viability of the claims
and seek dismissal for failure to allege sufficient facts against them, the motions will be denied with
leave to refile once the Amended Complaint has been redacted and refiled.
Conclusion
For the reasons set forth herein, the court will permit the filing of the proposed Amended
Complaint as to the products liability causes of action (Counts IV, V VI, and IX in part) and the
claims for damages (Counts X and XI). The motion will be denied in all other respects. The motion
of ACC to dismiss is granted as to Counts I, II, III, VII, VIII, and IX as it relates to fraud. In all
other respects, the motion will be denied. A separate order will be entered this date in accordance
with this opinion.

September 27, 2013

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