SOUCY v. BRIGGS & STRATTON CORPORATION et al

Filing 60

ORDER denying 39 Motion to Dismiss By JUDGE NANCY TORRESEN. (mlm)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TAMMIE D. SOUCY, individually
and as personal representative of
the estate of BRYAN SOUCY,
Plaintiff,
v.
BRIGGS & STRATTON
CORPORATION, et al.
Defendants.

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) Civil no. 1:13-cv-00068-NT
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ORDER ON DEFENDANT’S MOTION TO DISMISS
This case comes before the Court on Defendant Toro Company’s motion to
dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim for which relief may be granted. For the reasons that follow, the
motion is denied.
BACKGROUND
According to the complaint, decedent Bryan Soucy worked as a mechanic for
Bob’s Tune Up in Caribou, Maine from 1978 to 1989. Complaint 17 (ECF No. 1). The
complaint alleges that Soucy made repairs to small engines and other equipment,
including lawn mowers, tillers, snow blowers, golf carts, snow-mobiles and ATVs;
that he worked with and around components of these engines and equipment
including friction materials, brakes and gaskets; and that as a result he was

exposed to, and inhaled, ingested, or otherwise absorbed asbestos fibers emanating
from these components. Id. at 17-18
The complaint identifies eight defendants—Briggs & Stratton Corporation,
Harley Davidson, Inc., John Crane-Houdaille, Inc., Kohler Co., Polaris Industries,
Inc., Tecumseh Products Company, Textron, Inc., and Toro Company—as the
companies that designed, manufactured, distributed, sold, licensed, or leased the
asbestos-containing small engines and equipment on which Soucy worked. Id. at 512. The Plaintiff alleges that these defendants provided publications, training, and
instructions

directing

individuals

to

manipulate

the

asbestos-containing

components of their engines and equipment but failed to provide adequate warnings
of the danger of inhaling, ingesting, or otherwise absorbing asbestos fibers. Id. at2023, 32. The complaint alleges that, as a result of his work-related asbestos exposure
to the Defendants’ products, Soucy contracted mesothelioma and died. Id. at 26.
Toro has moved to dismiss the complaint, claiming that it fails to allege (1)
which particular Toro products Soucy was exposed to, (2) when and how Soucy was
exposed to these products, (3) how exposure to Toro’s products caused Soucy’s
illness and death, (4) how Toro’s product caused Soucy’s illness “to the exclusion of
all of the other sources” to which Soucy was exposed, and (5) how the publications,
instructions, and training associated with these products were lacking, “and if so[,]
what alternative warning should have been given.” Mot. to Dismiss 9-10 & 13 (ECF
No. 39).

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LEGAL STANDARD
“Dismissal of a complaint pursuant to Rule 12(b)(6) is inappropriate if the
complaint satisfies Rule 8(a)(2)’s requirement of ‘a short and plain statement of the
claim showing that the pleader is entitled to relief,’ Fed. R. Civ. P. 8(a)(2).” OcasioHernández v. Fortuño-Burset, 640 F.3d 1, 11 (1st Cir. 2011) (citing Ashcroft v. Iqbal,
556 U.S. 662, 677-78 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “A ‘short and plain’ statement needs only enough detail to provide a
defendant with ‘fair notice of what the . . . claim is and the grounds upon which it
rests.’” Ocasio-Hernández, 640 F.3d at 12 (quoting Twombly, 550 U.S. at 555).
“However, in order to ‘show’ an entitlement to relief a complaint must contain
enough factual material ‘to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true (even if doubtful in
fact).’” Ocasio-Hernández, 640 F.3d at 12 (quoting Twombly, 550 U.S. at 555
(citation omitted) and citing Iqbal, 556 U.S. at 678). “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.’” Ocasio-Hernández,
640 F.3d at 12 (quoting Twombly, 550 U.S. at 557). “In short, an adequate
complaint must provide fair notice to the defendants and state a facially plausible
legal claim.” Ocasio-Hernández, 640 F.3d at 12.
“In resolving a motion to dismiss, a court should employ a two-pronged
approach. It should begin by identifying and disregarding statements in the
complaint that merely offer ‘legal conclusion[s] couched as ... fact[ ]’ or ‘[t]hreadbare

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recitals of the elements of a cause of action.’” Ocasio-Hernández, 640 F.3d at 12
(quoting Twombly, 550 U.S. at 555)). “Non-conclusory factual allegations in the
complaint must then be treated as true, even if seemingly incredible.” OcasioHernández, 640 F.3d at 12 (citing Iqbal, 556 U.S. at 681). “If that factual content, so
taken, ‘allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged,’ the claim has facial plausibility.” Ocasio-Hernández,
640 F.3d at 12 (quoting Iqbal, 556 U.S. at 678.) “‘The make-or-break standard . . . is
that the combined allegations, taken as true, must state a plausible, not a merely
conceivable, case for relief.’” Ocasio-Hernández, 640 F.3d at 12 (quoting Sepúlveda–
Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010) (Souter, J.)).
DISCUSSION
Toro’s central objection to the complaint is that it fails to specify the
particular Toro products to which Soucy was allegedly exposed. In support of its
argument, Toro cites a trio of cases involving complaints of injuries from the
implantation of pain pumps in the plaintiffs’ shoulders. Esposito v. I-Flow Corp.,
No. 10-cv-3883, 2011 WL 5041374 (E.D. Pa., Oct. 24, 2011); Kester v. Zimmer
Holdings, Inc., No. 2:10-cv-00523, 2010 WL 2696467 (W.D. Pa., June 16, 2010); and
Dittman v. DJO, LLC, Civ. A. No. 08-cv-02791-WDM-KLM, 2009 WL 3246128 (D.
Colo., Oct. 5, 2009). The plaintiffs in these cases were unable to identify which pain
pump and anesthetic manufacturers were responsible for the particular product
installed in the plaintiff’s shoulder and were unable to specify which anesthetic was
used in the pumps. Instead the plaintiffs sued numerous pain pump and anesthetic

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manufacturers. Kester alleged that all of the manufacturers had duties to exercise
reasonable care in the design and manufacture of products they placed “into the
stream of commerce.” Kester, 2010 WL 2696467 *5. The Kester court concluded that
“the speculative and collective identification of the Defendants fails to adequately
identify which Defendant caused Plaintiff’s alleged injury.” Id. at *6. The Dittman
and Esposito courts reached similar conclusions. Dittman, 2009 WL 3246128 at *3
(“Plaintiff has no facts, only speculation, on which to base his claim that defendants’
products caused or contributed to his injury.”); Esposito, 2011 WL 5041374 at *5
(“complaint is not adequately plead if it names several defendants whose products
might have been used, but does not actually identify which defendants’ products
allegedly caused the injury”).
The pain pump cases are distinguishable from the instant case, because here
the Plaintiff is not alleging that the injuries were caused by one discrete product.
Rather, the Plaintiff plausibly alleges that Soucy’s injuries were caused by the
ingestion of asbestos fibers emanating from multiple products by multiple
manufacturers over a lengthy period of time. Unlike the pain pump cases in which
only one pain pump manufacturer and one anesthesia manufacturer were actually
liable in each of the cases, the Plaintiff here alleges that Soucy was actually exposed
to asbestos fibers from products manufactured by each of the Defendants.
The Plaintiff is not required to isolate Toro’s products as “the” products
responsible for the harm. The possibility that multiple products from multiple
manufacturers may be responsible for a single individual’s injuries has been

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repeatedly recognized in asbestos mesothelioma cases. See, e.g., Holcomb v. Ga.
Pac., LLC, 289 P.3d 188, 196-97 (Nev. 2012) (discussing cases and concluding that
there were triable issues of fact as to whether asbestos-containing brakes from
multiple manufacturers and asbestos-containing joint compounds from multiple
manufacturers were substantial causes of decedent’s mesothelioma).
The asbestos cases cited by Toro are also distinguishable. See Aguirre v.
Amchem Prods., Inc., No. CV 11-01907-PHX-FJM, 2012 WL 760627, (D. Ariz. March
7, 2012); Bulanda v. A.W. Chesterton Co., No. 11 C 1682, 2011 WL 2214010 (N.D.
Ill., June 7, 2011). In Aguirre, the complaint alleged that the defendants placed
asbestos-containing products into the stream of commerce “[w]ithout any facts
suggesting a temporal or geographic link between the asbestos products [the
decedent] was exposed to and the asbestos products manufactured and sold by
defendants . . . .” Aguirre, 2012 WL 760627, at *2. Although the complaint did
identify the product—Kaylo—which allegedly caused the death of the plaintiff’s
father, it failed to allege facts sufficient to apprise the manufacturer of how it was
that the decedent was exposed to Kaylo. Id. at *1. On that basis, the complaint was
insufficient to state a plausible claim. Similarly, in Bulanda, the plaintiff failed to
allege the type of work performed by the decedent and the type of products the
decedent worked with, providing the defendant with no notice of how the decedent
was exposed to asbestos, much less how he was exposed to asbestos contained in the
defendant’s products. See Bulanda, 2011 WL 2214010 at *2.

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Ultimately, the Plaintiff may be required to identify the particular asbestoscontaining Toro products to which Soucy was exposed. See, e.g., Chavers v. Gen.
Motors Corp., 79 S.W.3d 361, 369 (Ark. 2002) (under the majority “frequency,
regularity, and proximity” test for causation,1 defendants GM and AlliedSignal
entitled to summary judgment because plaintiff failed to show decedent was
exposed

to

specific

asbestos-containing

products

manufactured

by

these

defendants). But in some circumstances, it may not be necessary to identify the
particular products to demonstrate liability. See Holcomb, 289 P.3d at 198-99
(under the “frequency, regularity, and proximity” causation test, plaintiff not
required to identify particular joint compounds manufactured by defendants KellyMoore and Georgia Pacific because all joint compound products produced by these
companies during the years of decedent’s exposure contained asbestos). Regardless
of whether product identification is ultimately necessary in this case, at the 12(b)(6)
stage, this level of specificity is not necessary. See Coene v. 3M Co., No. 10-CV-6546
CJS, 2011 WL 3555788 (W.D.N.Y., Aug. 11, 2011) (dismissal not warranted though
complaint did not name the particular products allegedly manufactured by
defendants).
The complaint also sufficiently alleges that the publications, instructions,
and training associated with Toro’s products “directed individuals to encounter and
manipulate asbestos-containing parts and components in their engines and
equipment”; that these publications did not include “adequate instruction as to safer

Maine’s Law Court has not yet identified which test of causation applies to asbestos product
liability cases arising in Maine.
1

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methods” for handling their products; and that they failed to warn “of the dangers of
inhaling, ingesting or otherwise absorbing the asbestos fibers” people would
encounter in handling their products. Compl. ¶ 32. Toro has cited no cases in
support of its claim that the Plaintiff is required to allege what alternative
warnings Toro should have given. This may form part of a plaintiff’s proof of
causation, but it is not necessary to state a failure to warn claim under Maine law.
See, e.g., Koken v. Black & Veatch Const., Inc., 426 F.3d 39, 45 (1st Cir. 2005)
(summarizing Maine law: “[a] products liability action for failure to warn requires a
three-part analysis: (1) whether the defendant held a duty to warn the plaintiff; (2)
whether the actual warning on the product, if any, was inadequate; and (3) whether
the inadequate warning proximately caused the plaintiff’s injury.”).
The complaint also lets Toro know what sort of products are at issue (small
motor machines including lawn mowers, tillers, snow blowers, golf carts, snowmobiles and ATVs); the basic timeframe in which the products were produced (pre1978 to 1989); where the products were located (Caribou, Maine); how Soucy was
injured by the products (inhalation, ingestion, or absorption of asbestos fibers from
friction materials, brakes or gaskets incorporated into the products); and when,
where and how the exposure occurred (between 1978 and 1989 while Soucy worked
on small engines as a mechanic at Bob’s Tune Up in Caribou). Cf. Aguirre, 2012 WL
760627 (asbestos products liability complaint insufficient for failing to allege in
what industries decedent worked, what types of activities he performed, or in what
decades he worked). Both plausibility and notice are achieved by these allegations.

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CONCLUSION
For the reasons stated, Toro Company’s motion to dismiss is DENIED.
SO ORDERED.
/s/ Nancy Torresen
UNITED STATES DISTRICT JUDGE
Dated this 27th day of February, 2014.

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