Coene et al v. 3M Company et al
Filing
27
DECISION AND ORDER denying 5 defendant Arkema's Motion to Dismiss; denying 6 defendant Potters'Motion to Dismiss. Signed by Hon. Charles J. Siragusa on 8/10/11. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROBERT COENE, VALERIE COENE,
Plaintiffs,
DECISION AND ORDER
-v10-CV-6546 CJS
3M COMPANY, DTM CORPORATON,
POTTERS INDUSTRIES, INC., and
ARKEMA, INC.,
Defendants.
APPEARANCES
For Plaintiffs
Kenneth F. McCallion, Esq.
McCallion & Associates LLP
24 West 40th Street, 17th Floor
New York, New York 10018
Michael B. Martin, Esq.
Maloney, Martin, LLP
3401 Allen Parkway, Suite 100
Houston, Texas 77019
For Potters Industries:
Richard E. Leff, Esq.
McGivney & Kluger, P.C.
80 Broad Street, Floor 23
New York, New York 10004
For Arkema, Inc.:
Christopher D. Thomas, Esq.
Nixon Peabody LLP
Clinton Square
P.O. Box 31051
Rochester, New York 14603
INTRODUCTION
This is a products liability diversity action under New York State Law, in which
Plaintiffs claim, inter alia, that Robert Coene (“Mr. Coene”) developed silicosis after being
exposed to “powder coatings” manufactured by Potters Industries, Inc. (“Potters”) and
Arkema, Inc. (“Arkema”). Potters and Arkema have each filed a motion to dismiss the
complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure (“FRCP”)
12(b)(6). The applications are denied.
BACKGROUND
Unless otherwise noted, the following facts are taken from Plaintiffs’ Complaint (“the
Complaint”) in this action, and are presumed to be true for purposes of this Decision and
Order. Mr. Coene was formerly employed by Eastman Kodak Company (“Kodak”) between
January 1992 and February 2002, in which capacity he was exposed to silica dust. Despite
having worn respirator masks, Mr. Coene developed silicosis, a lung disease caused by
inhalation of silica dust.1
Plaintiffs maintain that Arkema and Potters manufactured
“pow[d]er coatings which contained silica or would transform into crystalline silica during the
industrial process occurring at the Eastman Kodak plant.” Complaint ¶ 26. Plaintiffs further
allege that Arkema and Potters “failed to warn [Mr. Coene] that the materials and products
in question that were handled by [him] could cause a deadly disease known as silicosis.” Id.
Count VI of the Complaint purports to state products liability claims against Arkema and
Potters, based on, inter alia, the failure to warn “of the dangers associated with continued
exposure to its [sic] product.” Id. at ¶ 61. Similarly, Counts VII and VIII purport to state
claims for negligence and breach of implied warranty, respectively, against both Arkema and
Potters. These claims refer to “these chemical products” and “these materials,” but do not
name a particular product manufactured by either Arkema or Potters.
1
See, Merriam W ebster’s Medical Desk Dictionary (1993) at pp. 654-655.
2
Instead, the
Complaint describes the products generally as “powder coatings” containing or giving off
silica. The Complaint does not explain the particular “industrial process” in which Arkema’s
and Potters’ products were used.
Arkema and Potters contend that the Complaint fails to state any claim against them,
for essentially two reasons. In that regard, both Arkema and Potters maintain that the
Complaint is defective because it does not specifically identify the products which injured
Mr. Coene. For example, Arkema states that, “[t]he most specific reference is to powder
coatings, a reference to a general category of products, [which] does not put Arkema on
notice as to what claims are being asserted against it.” Christopher Thomas Aff. [#5-1] ¶ 2.
Arkema goes on to indicate that it “manufactures dozens of coating products,” and
consequently, “the phrase ‘powder coatings,’ without more, is meaningless in this context.”
Arkema Memo of Law [#5-2] at 6. Potters similarly contends that Plaintiff’s description of
“powder coatings” is too vague.
As an additional argument, Potters maintains that it does “not manufacture anything
that even closely resembles ‘powder coatings,’” and that consequently, Plaintiffs’ allegations
do “not put Potters on notice as to what claims are being asserted against it.” Richard Leff
Aff. [#6] at ¶ 2.
Potters explains that while it sells “very fine glass beads made of
amorphous silica,” Potters Memo of Law [#6-1] at 2, n.2, they “simply cannot be converted
from amorphous silica to crystalline (harmful to human health) form.” Id. at 5. Moreover,
Potters contends that it did not sell any glass beads directly to Eastman Kodak, but instead,
“sold . . . large sacks to retail distributors throughout the country, which further complicates
[its] efforts to identify the alleged product identified in the Complaint.” Id.
3
Plaintiffs respond that their Complaint satisfies FRCP 8(a), and that the points raised
by Arkema and Potter will be addressed through discovery. Alternatively, Plaintiffs request
leave to file an amended complaint. On July 21, 2011, counsel for Plaintiffs, Arkema, and
Potters appeared before the undersigned for oral argument.
DISCUSSION
Arkema and Potters seek the dismissal of the Complaint for failure to state a claim,
pursuant to FRCP Rule 12(b)(6). The applicable legal standard is clear:
Federal Rule of Civil Procedure 8(a)(2) requires only 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. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.
Factual allegations must be enough 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).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007); see also,
ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (“To survive
dismissal, the plaintiff must provide the grounds upon which his claim rests through factual
allegations sufficient ‘to raise a right to relief above the speculative level.’") (quoting Bell Atl.
Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)
(Indicating that Bell Atl. Corp. v. Twombly adopted “a flexible ‘plausibility standard,’ which
obliges a pleader to amplify a claim with some factual allegations in those contexts where
such amplification is needed to render the claim plausible[,]” as opposed to merely
conceivable.), reversed on other grounds, Ashcroft v. Iqbal, 129 S.Ct.1937 (2009). When
applying this standard, a district court must accept the allegations contained in the complaint
4
as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v.
Carothers, 192 F.3d 52, 56 (2d Cir. 1999).
Applying these applicable legal principles, the Court finds that Plaintiffs’ claims
against Arkema and Potters satisfy FRCP 8(a). The Complaint gives them fair notice of
Plaintiffs’ claims, which all involve the fact that Mr. Coene developed silicosis after breathing
in silica dust from powder coatings manufactured by Arkema and Potters. The Complaint
also explains the factual ground for the claims, which is that between January 1992 and
February 2002, Mr. Coene performed manufacturing work for Eastman Kodak, during which
he breathed in silica dust given off by powder coating products manufactured by Arkema
and Potters which contained silica. Although the Complaint does not name the particular
products which they allegedly manufactured, “for most types of cases, the Federal Rules
eliminated the cumbersome requirement that a claimant set out in detail the facts upon
which he bases his claim.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1965, n. 3 (citation
and internal quotation marks omitted). Arkema and Potters ought to know whether they sold
“powder coating” material containing silica between January 1992 and February 2002.2
Consequently, they can frame an answer to the Complaint. Additional information about the
specific products at issue can be developed during discovery. See, Winslow v. W.L. Gore
& Assoc, Inc., Civil Action No. 10-116, 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
2
Arkem a states that it m anufactured “dozens of coating products,” but it does not say that it sold
dozens of coating products to Eastm an Kodak during the period at issue in this lawsuit. Presum ably, Arkem a
knows the particular product or products that it sold to Eastm an Kodak during that period.
5
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.”) (footnote omitted).
Nevertheless, relying primarily on Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d
596, 601 (1996) (“Healey”) and Tuosto v. Philip Morris USA Inc., 672 F.Supp.2d 350, 365366 (S.D.N.Y. 2009) (“Tuosto”), Arkema and Potters contend that the Complaint is deficient.
However, Healey and Tuosto are factually inapposite. Healey involved a summary judgment
motion in a products liability action involving a truck tire rim, where there was a dispute as
to the identity of the manufacturer of the rim. Healey, 87 N.Y.2d at 600-602. The New York
Court of Appeals held that the defendant was entitled to summary judgment, because, even
after conducting discovery, the plaintiff could not prove that the defendant had manufactured
the injurious rim. Id. at 602-603. Therefore, Healey is not pertinent to the instant action.
Tuosto was a cigarette products liability case, brought in connection with the death of Mrs.
Rita Tuosto, who smoked Philip Morris cigarettes for over thirty years. Tuosto involved, in
pertinent part, a design defect claim, in which the plaintiff was required to show that the
product was not reasonably safe, and that there was a safer, functional design alternative.
Tuosto, 672 F.Supp.2d at 364. In dismissing Tuosto’s design defect claim, the court noted,
inter alia, that the complaint “did not state which of Defendant’s cigarettes the decedent
smoked.” Id. at 365-366. On this point, the court observed that, “[t]he specific type of
cigarette Rita Tuosto smoked becomes critically relevant in light of the New York Court of
6
Appeals’ Adamo3 decision,” which decision is specific to cigarette design defect products
liability cases, and is not relevant to the instant case. Tuosto is therefore distinguishable
from the instant case. Admittedly, the Tuosto decision also includes the following language,
upon which Arkema and Potters rely: “Without a specified product, the Court cannot
evaluate, and the Defendant cannot respond, to Tuosto's claim. Put simply, without a
specified product, it is impossible to identify a specific defect.” Id. at 366. However, to the
extent that they contend that a products liability complaint that does not specifically identify
a product by name must necessarily be dismissed under FRCP 12(b)(6), this Court
disagrees. See, Coleman v. Boston Scientific Corp., No. 1:10-cv-01968-OWW-SKO, 2011
WL 1532477 at *2-5 (E.D.Ca. Apr. 20, 2011) (Denying motion to dismiss products liability
complaint which alleged that defendant 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.”);
Hemme v. Airbus, S.A.S., No. 09 C 7239, 2010 WL 1416468 at *3 (N.D.Ill. Apr. 1, 2010) (In
products liability action involving defective electrical components in passenger jet, Defendant
argued that complaint’s use of the “generic word ‘wiring’” was insufficient, and that plaintiff
had to “identify the particular product that was allegedly defective,” but the court disagreed);
cf., Bulanda v. A.W. Chesterton Co., No. 11 C 1682, 2011 WL 2214010 (N.D.Ill. Jun. 7,
2011) (Products liability complaint was dismissed for failure to state a claim, where plaintiff
alleged only that she was injured by unspecified “asbestos products and/or asbestos
3
Adamo v. Brown & W illiamson Tobacco Corp., 11 N.Y.3d 545, 900 N.E.2d 966 (2008).
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equipment” that defendant allegedly sold; the court observed that the complaint “makes no
reference” to any asbestos product manufactured by the defendant)4; Harrington v. Daiso
Japan, No. 10-3876 SC, 2011 WL 2110764 (N.D.Cal. May 26, 2011) (Products liability
complaint dismissed where plaintiff alleged only that she bought unspecified children’s toys
from retailer: “Plaintiffs do not identify the allegedly dangerous items, how they came to
acquire them, how the products caused them injury, or what damages they allegedly
sustained.”). As for Potters’ contention that it does not produce powder coatings, that is an
issue going to the merits of the case, which is not properly raised in a 12(b)(6) motion.
Halebian v. Berv, 644 F.3d 122, 2011 WL 1707184 at *6 (2d Cir. May 6, 2011) (“[T]he
purpose of Federal Rule of Civil Procedure 12(b)(6) is to test, in a streamlined fashion, the
formal sufficiency of the plaintiff's statement of a claim for relief without resolving a contest
regarding its substantive merits.”) (citation and internal quotation marks omitted).
CONCLUSION
Arkema’s Motion to Dismiss [#5] and Potters’ Motion to Dismiss [#6] are both denied.
SO ORDERED.
Dated:
August 10, 2011
Rochester, New York
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
4
The instant case is distinguishable, of course, since Plaintiff identifies a particular type of product,
“powder coating,” sold to Eastm an Kodak during a particular period.
8
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