Eastridge v. Goodrich Corporation et al
Filing
203
MEMORANDUM OPINION AND ORDER Signed by Senior Judge Charles R. Simpson, III on 9/30/2014. Chevron USA's Motion to Join American Chemistry Council et al's Motion to Dismiss the Revised Amended Complaint #168 is GRANTED. Plaintiff's Motion for Leave to File Surreply in Opposition to Motion to Strike #189 is GRANTED. American Chemistry Council et al's Motion to Strike Revised Amended Complaint #162 is DENIED. Society of the Plastics Industries' Motion to Strike Plainiff's Response to Their Notice of Supplemental Authority in Support of its Motion to Dismiss #201 is DENIED. Society of the Plastics Industries' Motion to Take Judicial Notice of Public Document Filed #167 is GRANTED. Society of the Plastics Industries' Motion to Dismiss Revised Amende Complaint #166 is DENIED. American Chemistry Council and joining defendants' Motion to Dismiss #164 is GRANTED in part and DENIED in part. Linde's Motion to Dismiss Plaintiff's Revised Amended Complaint #169 and Supplemental Memorandum of Chevron #187 are GRANTED. Plaintiff's Second Revised Amended Complaint #179 is DISMISSED as to Linde and Chevron. cc: Counsel(RLK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
PAMELA M. EASTRIDGE, Executrix
of the Estate of Joseph E. Morris, Jr.
PLAINTIFF
v.
CIVIL ACTION NO. 3:12CV-862-S
GOODRICH CORPORATION, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the court for consideration of the following motions:
(1) The motion of the defendants, American Chemistry Council,
Georgia Gulf Corp., Goodrich Corp., PolyOne Corp., PPG
Industries, Inc., and Shell Oil Co., to strike the revised
amended complaint. (DN 162).
(2) Motion of the defendant, Society of the Plastics Industry,
Inc., to dismiss the revised amended complaint for lack of personal
jurisdiction. (DN 163).
(3) Motion of the defendants, American Chemistry Council,
Georgia Gulf Corp., Goodrich Corp., PolyOne Corp., PPG
Industries, Inc., and Shell Oil Co. to dismiss the revised amended
complaint. (DN 164).1
1 Defendant Chevron U.S.A., Inc. has been permitted to join in the motion of the American Chemistry Council,
et al., to dismiss. (DN 164). In its joinder, Chevron also files its own memorandum addressing grounds for
dismissal. (DN 168). Those arguments are also addressed herein, despite the lack of a separate motion to
dismiss. The motion to dismiss (DN 164) is also joined by: Air Products and Chemicals, Inc., Chevron U.S.A.,
Inc., ConocoPhillips Company, The Dow Chemical Company, EPEC Polymers, Inc., f/k/a Tenneco Polymers,
Inc., Ethyl Corporation, Georgia-Pacific, LLC, The Goodyear Tire & Rubber Company, Gulf Oil Limited
Partnership, Honeywell International Inc., Linde LLC (f/k/a The BOC Group, Inc. f/k/a named defendant Airco,
Inc.), Momentive Specialty Chemicals, Inc., Monsanto Company, Occidental Chemical Corporation, Olin
Corporation, Sasol North America, Inc., The Society of the Plastics Industry, Inc., Tenneco, Inc., and Union
Carbide Corporation. (DN 164, p. 6, fn. 1).
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(4) Motion of the defendant, Society of the Plastics Industry,
Inc., to dismiss the revised amended complaint for failure to state a
claim for relief. (DN 166).
(5) Request of defendant Society of the Plastics Industry, Inc., for
judicial notice in support of its motion to dismiss the revised
amended complaint for failure to state a claim for relief. (DN
167).
(6) Joinder of defendant Chevron U.S.A. Inc., in motion to dismiss
and memorandum in support of defendants The American
Chemistry Council et al. and supplemental memorandum in
support. (DN 168).
(7) Motion of the defendant, Linde, LLC f/k/a the BOC Group,
Inc. f/k/a named defendant Airco, Inc., to dismiss plaintiff’s
revised amended complaint. (DN 169).
(8) Motion of the plaintiff, Pamela M. Eastridge, Executrix of the
Estate of Joseph E. Morris, Jr. for leave to file a surreply in
opposition to defendant’s motion to strike. (DN 189).
(9) The motion of the defendants, Society of the Plastics
Industry, Inc., to strike the response of the plaintiff, Pamela M.
Eastridge, Executrix of the Estate of Joseph E. Morris, Jr., to SPI’s
notice of supplemental authority in support of its motion to dismiss
the revised Amended Complaint. (DN 201).
I.
Factual Background
Eastridge alleges that the decedent, Joseph E. Morris, Jr., was exposed to
polyvinyl chloride (“PVC”) and PVC-containing products from 1964 until 1980 during
his employment with Goodrich Corporation. Morris worked at the B.F. Goodrich Plant
in Louisville, Kentucky from approximately 1964 to 2005.
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
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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.
There have been a number of iterations of the Complaint to date. We address the
motions to dismiss herein with reference to the Second Revised Amended Complaint
(SRAC)(DN 179).
II.
Analysis
A.
We find that oral argument on the pending motions is unnecessary. The matters
have been fully briefed, and we find the issues relatively straightforward.
Therefore, the
parties’ requests for oral argument, made as a matter of course in each motion filed, will
be denied.
B.
The motion of the defendant, Chevron U.S.A., Inc., to join in the motion of
defendants American Chemistry Council, et al., to dismiss the revised amended
complaint (DN 168) is GRANTED.
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C.
The motion of the plaintiff, Pamela M. Eastridge, Executrix of the Estate of
Joseph E. Morris, Jr., for leave to file a surreply in opposition to defendant’s motion to
strike (DN 189) is GRANTED.
The surreply indicates that Eastridge believes the
SRAC complies with the court’s orders and is as streamlined a document as she is
capable of producing.
D.
The plaintiff filed the SRAC pursuant to an order of this court requiring her to do
so.
(DN 178). The SRAC does not redact much from the complaint. The defendants
have aptly noted that it is not the job of the court to “excavate masses of papers in search
of revealing tidbits.”2 As such, we will address the content of the SRAC only to the
extent indicated by plaintiff’s response to the motions to dismiss (Consolidated Response,
DN 187).
The motion of the defendants, American Chemistry Council, Georgia Gulf Corp.,
Goodrich Corp., PolyOne Corp., PPG Industries, Inc., and Shell Oil Co., to strike the
revised amended complaint (DN 162) is DENIED.
While these defendants seek to
challenge the redaction of the SRAC as a whole, the court will address, instead, the
sufficiency of the claims to withstand dismissal under Iqbal and Twombly.
th
2 Northwestern Nat’l Ins. v. Boltes, 15 F.3d 660, 662-663(7 Cir. 1994).
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E.
The motion of the defendant, Society of the Plastics Industry, Inc. (“SPI”), to
strike the response of the plaintiff to SPI’s notice of supplemental authority in support of
its motion to dismiss for lack of jurisdiction (DN 201) is DENIED.
The response of the plaintiff addresses SPI’s assertion that it does not have
sufficient contacts with Kentucky for this court to exercise personal jurisdiction over it.
SPI has raised the issue of personal jurisdiction long after its active engagement with the
other defendants in addressing the sufficiency of the various iterations of the complaint.
We conclude that there is no prejudice to SPI inasmuch as SPI has addressed the matters
raised in Eastridge’s response.
The court prefers to decide such issues on a fulsome
record.
F.
For the following reasons, the motion of the American Chemistry Council, et al.,
to dismiss the revised amended complaint (DN 164) is GRANTED IN PART AND
DENIED IN PART, as set forth below. The motion to take judicial notice of public
documents filed in support of the motion of the defendant, SPI (DN 167) is GRANTED.
The motion of the defendant, SPI, to dismiss the revised amended complaint (DN 166) is
DENIED.
To overcome a motion to dismiss, a complaint must contain sufficient facts to
state a claim for relief that is “plausible on its face.”
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Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). As explained in Ashcroft
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009),
A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged. [Twombly, supra.] at 556, 127 S.Ct.
1955.
The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Ibid. Where a complaint pleads facts
that are “merely consistent with” a defendant’s liability, it “stops short of
the line between possibility and plausibility of ‘entitlement to relief.’”
Id.., at 557, 127 S.Ct. 1955 (bracket omitted).
(1) Counts II and VI of the SRAC
The court noted in the September 30, 2013 memorandum opinion that
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. Dawson v. Bristol Labs, 658 F.Supp. 1036, 1039-40 (W.D.Ky.
1987). 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 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.
DN 155, p. 7.
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The defendants now challenge the sufficiency of the claim under the
Iqbal/Twombly standard.
Eastridge agrees to the dismissal of the concert of action claim as to Sasol North
America, Inc., EPEC Polymers, Inc. f/k/a Tenneco Polymers, Inc, as these companies
were not in existence during the period 1964 to 1980, the period of time during which
Morris was allegedly exposed to VC.
PolyOne is sued as the successor to Goodrich,
and thus is not entitled to dismissal on the same ground. A review of the SRAC reveals
that PolyOne was identified as successor to Goodrich in ¶ 2(a) of the SRAC.
Further, ¶
2(a) states that the B.F.Goodrich Company, the Geon Company, PolyOne Corporation,
and Goodrich Corporation are referred to collectively in the SRAC as “B.F. Goodrich.”
The motion to dismiss will be denied as to PolyOne Corporation.
The remaining defendants seek dismissal of the claim alleging concert of action,
as they contend that there is no discernment in the SRAC as to each alleged actor’s
purported substantial assistance to the manufacturer/supplier defendants in the
commission of the alleged product liability torts against Morris.
While the court’s earlier memorandum opinion acknowledged the theory of
concert of action as a recognized cause of action in this context, the court left open the
possibility of a more particularized analysis as to the sufficiency of the claim under Iqbal
and Twombly.
The parties all acknowledge that allegations of parallel activity are insufficient to
state a concert of action claim.
Dawson v. Bristol Laboratories, 658 F.Supp. 1036, 1040
(W.D.Ky. 1987). Eastridge specifically states in the SRAC that “The trade associations
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and other defendants are each sued solely based upon their own tortious acts.
No party
is sued on the mere basis of attendance at trade association or scientific meetings or for
merely belonging to a trade association.” DN 179, p. 7.3 Upon closer analysis of the
claim and the extensive facts in support, the court concludes that the allegations contain
more than mere allegations of parallel activity sufficiently identify the alleged conduct of
each defendant and the purported concerted action undergirding the theory.
Count II of the SRAC is the conspiracy claim retitled “Acting In Concert Claims.”
In fact, within the many pages of allegations of misconduct allegedly beginning in the
1950s, she summarizes that “The conspiracy among the defendants was intended to
misrepresent and conceal material facts about the nature and extent of the risks of
exposure to vinyl chloride and vinyl chloride-containing products from Morris and all
other vinyl chloride workers and fabricators.”
DN 179, p. 69, ¶ 201.
She goes on to
allege that “The conspiracy involved the common design, substantial assistance and
mutual understanding among all the conspiring defendants that the co-conspirators would
misrepresent and conceal material facts…” DN 179, p. 69, ¶ 202. Count II will not be
recognized as stating a claim for civil conspiracy, as that claim was previously dismissed
as untenable.
However, to the extent that the facts stated therein support claims of
acting in concert, as so captioned, Count II will not be dismissed.
Count VI is entitled “Acting In Concert with the Manufacturer/Supplier
Defendants in the Commission of the Breach of Duty to Warn, Products Liability
Violations and Breach of Implied Warranty.” DN 179, p. 77.
In this count, Eastridge
3 Eastridge then proceeds to itemize the ways in which the defendants “aided and abetted each other.” Id.
The court dismissed the complaint to the extent that it alleged aiding and abetting, as there is no tort of
aiding and abetting recognized in Kentucky. DN 155, p. 8.
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states that “The defendants gave substantial assistance and encouragement to the
Manufacturer/Supplier defendants in their commission of the tortious misconduct.” DN
179, p. 78, ¶ 245. She states that the “substantial assistance” provided by the defendants
the Manufacturer/Supplier defendants included but is not limited to (1) deliberately
limiting the warnings in SD-56 to fire, explosion and risk of burns…, (2) deliberately
failing and refusing to provide accurate, complete and adequate warnings…, (3),(4), and
(5) deliberately failing to conduct tests and investigations, (6) deliberately failing to
conduct epidemiological investigations… DN 179, p. 78.
The SRAC alleges that the chemical data safety sheet known as SD-56 was
drafted by the Manufacturing Chemists Association (now known as the American
Chemical Council) in 1953 and that, despite known information as to the hazards of VC
exposure, SD-56 stated that 500 ppm was an accepted and safe exposure limit and that
the only hazards from VC were fire, explosion, frostbite burns and a mild general
anesthesia. SRAC, p. 10, ¶ 20.
The SRAC states in the next paragraph (SRAC ¶ 21) that “The defendants agreed
to disseminate SD-56, and nothing contrary to SD-56, in order to conceal the hazards of
vinyl chloride from workers, including Morris.”
While this allegation is conclusory, the
SRAC continues on for some fifty pages reciting purported acts or alleged failures to act
by various defendants relating to various studies, meetings, and publications from 1953
through the 1980s. Eastridge sweeps all of the defendants into somewhat non-specific
allegations of concerted action in the failure to provide accurate and complete warnings
and failure to conduct test or investigations (DN 179, Count VI), concluding that that this
9
conduct
constituted
substantial
assistance
and
encouragement
Manufacturer/Suppliers in causing the injury and death of Morris.
to
the
Id. However, the
SRAC recites voluminous facts as to discrete events that purportedly evidence each
defendant’s involvement in the bigger picture -- concerted action to assist and perpetuate
the industry-wide common design and understanding to misrepresent and/or conceal
material facts about the hazards of VC.
The defendants argue that SRAC does not connect the dots to establish concerted
action on the part of each individual defendant.
It is not so much that the SRAC, as a
document, lacks particularity – there is plenty of particularity concerning individual
events and developments in the chemical industry which occurred over a thirty-year
period.
Rather, it is the purported lack of any factual specificity concerning the
defendants’ involvement in a common design and the rendering of substantial assistance
to the manufacturer/supplier defendants.
The defendants contend that Eastridge throws
all of the purported acts and failings in a SRAC, with the recitation of generalities
concerning common design against all defendants named in the SRAC.
The defendants cite repeatedly to Smith v. Univar USA, Inc., No. 12-134-ART,
2013 WL 1136624 (E.D.Ky. Mar. 18, 2013).
There, the court stated
Under a concert of action theory, the plaintiffs can hold the defendants
jointly and severally liable if they prove the defendants (1) acted
unlawfully by common design; (2) knew that a codefendant was acting
unlawfully and gave substantial encouragement to the codefendant; or (3)
gave substantial assistance to a codefendant’s unlawful acts, when the
defendant’s conduct was also unlawful.
Peoples Bank of N. Ky., Inc.,
277 S.W.3d at 261 (citing Farmer v. City of Newport, 748 S.W.2d 162
(Ky.App. 1988)). Allegations of parallel activity are insufficient to state
a concert of action claim. Dawson v. Bristol Laboratories, 658 F.Supp.
1036, 1040 (W.D.Ky. 1987). The complaint does not contain any
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factual allegations that state a plausible claim against the defendants
under any of those three theories. See Twombly, 550 U.S. at 570 (a
complaint must contain “enough facts to state a claim to relief that is
plausible on its face”). Nor do the plaintiffs’ allegations “give the
defendant fair notice of what the…claim is and the grounds upon which it
rests.” Id. at 555 (citation omitted). First, the plaintiffs assert that
the defendant acted “pursuant to a common design.” R. 71 at 31 ¶
86(a). But, as noted above, there are no facts in the complaint
suggesting an agreement or common design between the defendants.
Second, the plaintiffs assert that the defendants “[k]new that the actions
of the [co-defendants] in hiding…the risks of [TCE and TCA]…were
breaches of duty…and gave substantial assistance” to the co-defendants.
R. 71 at 31 ¶ 86(b). But the plaintiffs’ allegations do not describe what
substantial assistance each defendant gave the other defendants. And,
third, the plaintiffs argue that the defendants “[g]ave substantial
assistance to [their co-defendants] in manufacturing and selling TCE and
TCA without proper warnings, and independently engaged in “conduct
which was a breach of duty to [the] plaintiffs.” R. 71 at 31 ¶ 86(c).
But again, the complaint does not adequately put the defendants on notice
because the plaintiff did not present facts explaining how each
defendant’s conduct substantially assisted its co-defendants. And while
each defendant’s research (or government testimony) may have justified
the other defendants’ inadequate warnings, R. 71 at 31-32 at ¶ 88, it is not
clear what duty to the plaintiffs the defendants breached by this conduct.
Thus the plaintiffs’ concert of action claim must be dismissed.
This case can be readily distinguished from Smith, however, as the Complaint in
that case lacked the specificity that is contained in the SRAC. The SRAC more than
adequately puts the defendants on notice as to the particular conduct that allegedly
renders them concerted actors. Whether Eastridge is able to ultimately establish an
agreement or understanding and substantial assistance to the manufacturer/suppliers
remains to be seen. However, Eastridge has satisfied the Iqbal/Twombly standard by
offering sufficient detail in her allegations to elevate the claim from possible to probable.
Eastridge points to a number of allegations, particularly ¶¶ 46, 47, 48, 78, 99, and
116, purportedly evidencing knowledge and suggesting that the defendants formed an
11
agreement “to conceal and/or misrepresent and/or fail to warn about the harmful effects
of VCM.” A review of the cited paragraphs reveals the following:
a. Paragraph 46 relates to a December 7, 1974 meeting attended by some but not
all of the defendants where a public relations firm was ordered to publish a pamphlet for
PVC workers assuring them that they were not exposed to hazardous levels of VC even
though the defendants knew this was inaccurate.
b. Paragraph 47 relates to an August 21, 1974 Senate hearing on VC where a
number of defendant’s representatives allegedly testified falsely as to the historical
knowledge concerning VC hazards.
c. Paragraph 48 relates to a July 16, 1976 writing by the chairman of the CMA
and SPI vinyl panels indicating that the Technical Task Group had decided earlier not to
revise SD-56.
d. Paragraph 78 relates to a July 30, 1974 meeting of the MCA Vinyl Chloride
Research Coordinators, with a handful of defendants represented, who voted to abandon
animal studies to find a no effect VC exposure level.
e. Paragraph 99 relates to the circulation of a Dow Chemical position paper
concerning recently discovered brain tumors to the PVC Safety Group on March 5, 1979
which was not disclosed to workers.
f. Paragraph 116 relates to a meeting on May 8, 1989 of SPI and the Vinyl
Institute Health Safety and Environmental Committee where some but not all of the
defendants were represented and where it was agreed to terminate the angiosarcoma
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registry purportedly to conceal the fact that VC was causing angiosarcoma in PVC
fabricators.
As can be seen from these allegations identified by Eastridge in her responsive
brief as representative of the many facts, she seeks to weave together individual acts by
various defendants who came together and purportedly acted in agreement at various
times and places and over a long period of time to suggest an overarching “concerted
action.” The recitation of the individual defendants’ purported acts (such as the alleged
June, 1974 decision at the MCA Vinyl Chloride Research Coordinators meeting to
abandon animal studies) put the defendants on notice as to how they each purportedly
provided substantial assistance therein.
Additionally, the SRAC sufficiently alleges that Morris relied on the purported
misinformation, as Morris was allegedly provided various written information concerning
the effects of VC, including SD-56, and training at Goodrich was allegedly based upon
the information provided. DN 179, ¶¶ 24, 175.
The motion to dismiss the claims alleging concert of action will be denied.
(2)
The defendants seek dismissal of Counts III, IV, and V on the ground that they fail
to state product liability claims upon which relief may be granted.
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a.
Goodrich contends that it is entitled to dismissal on the ground that it is immune
from suit because it participated in the Kentucky Workers Compensation system.
Goodrich has provided documentation of its participation in the program during
the period of time that Morris was allegedly exposed to VC. Morris was allegedly
exposed to VC at Goodrich from 1964 to 1980.
angiosarcoma until 2011.
He was not diagnosed with
By that time, the statute of repose contained in KRS
342.316(4) barred Morris from filing a claim. However, the Kentucky courts have held
that there is no constitutional impediment to the repose provision of five years from the
last injurious exposure to the occupational hazard.
Wright v. Oberle-Jordre Co., Inc.,
910 S.W.2d 241, 243 (Ky. 1995), quoting William A. Pope Co. v. Howard, 851 S.W.2d
460 (Ky. 1993); Blanton v. Cooper Industries, Inc., 99 F.Supp.2d 797 (E.D.Ky. 2000).
Eastridge has urged that Goodrich may not rely on the immunity provided by
workers compensation participation, as it intentionally violated OSHA and KOSHA
standards. This argument was addressed by the Kentucky Supreme Court, however, in
Moore v. Environmental Construction Corp., 147 S.W.3d 13 (Ky. 2004), holding that the
employer’s “violation of OSHA regulations and acknowledgement of the possible
consequences does not amount to a deliberate intention to produce [decedent’s] death,”
and the employer was entitled to the immunity of the exclusive remedy provision of the
Kentucky Workers Compensation Act.
For this reason, B.F.Goodrich and its successors will be dismissed from the
action.
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The defendants urge that the complaint fails to state a claim for breach of implied
warranty, as such claim is subsumed in a strict liability claim.
The proof required to
establish strict liability does, in, fact, subsume the warranty claim.
Count V will be
dismissed.
The defendants also argue that the SRAC “improperly lumps together” purported
pre-1974 conduct with purported post-January 1974 conduct and thus fails to meet the
Iqbal/Twombly standard for stating a viable claim.
As described by the defendants, in January, 1974 a “watershed event” occurred
when the hazards of long-term high-level occupational exposure to VC became widely
known and published.
In April, 1974, an Emergency Temporary Standard for
occupational exposure was issued (39 Fed.Reg. 12,342), and a Permanent Standard
followed in June of the same year.
The defendants contend that the failure of the SRAC to differentiate as to the
liability for failure to warn and strict product liability before and after the publication of
VC dangers renders the product liability claims insufficient under Iqbal/Twomby.
The
court rejects this contention.
The SRAC adequately alleges that the Manufacturer/Suppliers supplied VC,
allegedly unreasonably dangerous due to its design and due to the lack of warnings, that
Morris was a foreseeable user of the product, and that VC caused his death.
It is also
alleged that these defendants knew that VC was unreasonably dangerous and defective,
and that they failed to warn and breached certain warranties with respect to the product.
The fact that widespread knowledge as to the dangers of VC may have changed the
15
ultimate impact of the defendants’ acts does not render the product liability claims infirm.
The motion to dismiss Counts III, IV, and V on this basis will be denied.
(3) Summary
For the reasons stated hereinabove, the motion of the American Chemistry
Council and joining defendants to dismiss (DN 164) is GRANTED AS TO
DEFENDANTS SASOL, EPEC AND TENNECO AND B.F. GOODRICH, AND ITS
SUCCESSORS, THE GEON COMPANY, POLYONE CORPORATION, AND
GOODRICH CORPORATION, and the Second Revised Amended Complaint is
dismissed as to each of them.
DISMISSED.
Count V alleging breach of implied warranty is
In all other respects, the motion is DENIED.
G.
The motion of the defendant, Linde, LLC f/k/a The BOC Group, Inc. f/k/a named
defendant Airco, Inc. to dismiss plaintiff’s revised amended complaint (DN 169) and
Supplemental Memorandum of Chevron (DN 187) are GRANTED, and the Second
Revised Amended Complaint (DN 179) is DISMISSED AS TO EACH OF THEM.
Eastridge did not reply to the motions to dismiss of these parties. She chose
instead to file one consolidated response brief (DN 187), noting that “Because of the
similarity in the Defendants’ pending motions, Plaintiff files this brief in opposition to all
pending Motions to Dismiss.” DN 187, fn. 7.
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These defendants adopt the 12(b)(6) “sufficiency” arguments made by the other
defendants.
However they also assert that, unlike the other defendants, they are simply
not alleged in the SRAC to have been participants any of the alleged misconduct.
The
court’s review of the portions of the SRAC cited by Eastridge finds no allegations against
Airco, or Chevron.
Thus they are entitled to dismissal.
IT IS SO ORDERED.
September 30, 2014
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