Weist et al v. E.I. DuPont De Nemours and Company et al
REPORT AND RECOMMENDATIONS re 19 MOTION for Partial Summary Judgment filed by E.I. DuPont De Nemours and Company, 18 First MOTION for Partial Summary Judgment filed by First Chemical Corporation. Objections due ten days from receipt. Signed by Hon. H. Kenneth Schroeder Jr. on 2/8/2008. (KER)
Weist et al v. E.I. DuPont De Nemours and Company et al
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
HARRY D. WEIST and DIANE M. WEIST, his spouse, Plaintiffs, v. E.I. DUPONT DE NEMOURS AND COMPANY, et al., Defendants. 05-CV-0534S(Sr)
REPORT, RECOMMENDATION AND ORDER This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #4. Following Chief Judge Arcara's recusal, the matter was transferred to the Hon. William M. Skretny. Dkt. #64.
Currently before the Court is defendant First Chemical Corporation's motion for summary judgment (Dkt. #18), and defendant E.I. DuPont De Nemours & Company's ("DuPont's"), motion for summary judgment seeking dismissal of paragraph 20(g) of plaintiffs' complaint. Dkt. #19. For the following reasons, it is recommended that the motions for summary judgment be granted.
BACKGROUND Plaintiff Harry D. Weist has been employed at Goodyear Tire and Rubber Company ("Goodyear"), since December 21, 1977. Dkt. #1, ¶ 7. During the period of 1981 through 1990, he alleges workplace exposure to ortho-toluidine, a chemical which was manufactured and distributed to Goodyear by the defendants. Dkt. #1, ¶ ¶ 7-8; Dkt. #22-2, ¶ 1. Plaintiffs allege that this exposure caused Harry D. Weist to suffer personal injuries, including bladder cancer, and that his wife, Diane M. Weist, has suffered loss of consortium. Dkt. #1, ¶¶ 9 & 24. Plaintiffs seek to hold defendants responsible on theories of strict liability and negligence. Dkt. #1. Of relevance to the instant motion, plaintiffs allege that: Defendants, and/or their predecessors-in-interest, failed in their duty to evaluate Goodyear's handling of this product, counsel Goodyear on the safe use of this product, and discontinue sale of the product to Goodyear in order to prevent further unsafe exposure to the product and force the implementation of corrective action. Dkt. #1, ¶ 20(g).
DISCUSSION AND ANALYSIS Defendants argue that there is no legal basis to impose a duty upon a chemical manufacturer to evaluate their customers' handling of that chemical, to counsel their customers on the safe use of that chemical or to discontinue sales of a chemical to prevent unsafe exposure or to force corrective action. Dkt. ##18 & 19. Defendants also note that to permit these allegations to go forward, the Court would need to find that defendants owed this duty not only to their customers, but to their customers' employees. Dkt. #19. -2-
Application of New York Law Jurisdiction of this matter is based upon the diversity of the citizenship of the parties as set forth under 28 U.S.C. § 1332(a), and the amount in controversy, which exceeds $150,000. Dkt. #1, ¶ 1. "Federal courts sitting in diversity cases will, of course, apply the substantive law of the forum State on outcome determinative issues." Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994), citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). "Where the substantive law of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum state would resolve the uncertainty or ambiguity." Id. Accordingly, "[w]here the highest court of a state has not resolved an issue, the . . . federal court `must apply what [it] find[s] to be the state law after giving proper regard to relevant rulings of other courts of the State.'" Kline v. E.I. DuPont De Nemours & Co., Inc., 15 F. Supp.2d 299, 302 (W.D.N.Y. 1998), quoting Travelers Ins. Co., 14 F.3d at 119 (internal quotation omitted).
Summary Judgment Standard Summary judgment is appropriate "[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party." Thomas v. Irvin, 981 F. Supp. 794, 799 (W.D.N.Y. 1997) (internal citations omitted). A -3-
fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
Once the moving party has met its burden of ?demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a
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