SCHWARTZ et al v. ACCURATUS CORPORATION et al

Filing 97

MEMORANDUM/OPINION THAT THIS COURT NOW DENIES THE MOTION TO DISMISS AND ALLOWS THE NEGLIGENCE CLAIMS AGAINST DEFENDANT ACCURATUS TO PROCEED. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 3/30/17. 3/30/17 ENTERED AND COPIES E-MAILED.(ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRENDA ANN SCHWARTZ and PAUL GRANT
SCHWARTZ,
Plaintiffs,
CIVIL ACTION
NO. 12-6189

v.
ACCURATUS CORPORATION,
in its own right and as successor in interest to
Accuratus Ceramic Corporation,
Defendant.
MEMORANDUM
SCHMEHL, J.

March 30, 2017

This case, concerning Plaintiff Brenda Schwartz’s injuries caused by exposure to
beryllium allegedly carried home by employees of Defendant Accuratus, has returned to
this Court following an appeal and remand. This Court previously dismissed the
negligence claim against Defendant, holding that Defendant’s liability under New Jersey
law for “take-home” exposure did not extend to Mrs. Schwartz because she was merely a
roommate and girlfriend of Defendant’s employees rather than a spouse. The Third
Circuit certified to the New Jersey Supreme Court the question of whether that state’s law
indeed limits take-home exposure liability to spouses; based on the response, the Third
Circuit vacated this Court’s decision and remanded for further proceedings consistent
with the guidance provided by the New Jersey Supreme Court. In light of that guidance
and absent a categorical bar to Mrs. Schwartz’s claim as a non-spouse, this Court now
denies the motion to dismiss.

Factual and Procedural Background
This matter has a complicated history. Some of the background can be carried
over from this Court’s prior opinion:
The primary Plaintiff is Brenda Ann Schwartz (“Brenda”), who
allegedly suffers a variety of adverse health effects associated with chronic
beryllium disease. Her husband, Paul Grant Schwartz (“Paul”), brings a
loss of consortium claim. Both Plaintiffs are Pennsylvania residents.
Defendants Accuratus Corporation (“Accuratus”) and Materion Brush Inc.
(“Brush”) are two companies with plants in New Jersey manufacturing
beryllium products.
As the name suggests, chronic beryllium disease results from
exposure to beryllium, apparently in dust form; without undue focus on
technical aspects at this stage, the factual and legal situation can be
considered analogous to the more familiar issue of asbestos exposure. As
with asbestos, exposure to beryllium can result from employment in
facilities that work with it. However, Brenda was never employed by
either Defendant; rather, she alleges she was exposed to beryllium carried
home from work, on clothing and/or shoes, by Paul and a roommate
named Gregory Altemose (“Altemose”).
Brenda and Paul met and began dating in 1978. Paul moved in
with Altemose in 1979, and Brenda spent a lot of time at their apartment.
In June 1980, Brenda married Paul and moved into the apartment, where
all three lived together for a time. In 1978 and 1979—that is, when Brenda
was merely dating Paul and visiting the apartment—Paul worked at
Accuratus. Altemose also started at Accuratus in 1978, but continued
working there until the present. Therefore, beryllium from Accuratus
could have reached Brenda via Paul before they were married, or via
Altemose, a roommate.
From 1979 through 1987, Paul worked at Brush. In addition, in
1978 and 1979, when Paul worked at Accuratus, Brush sold beryllium
products to Accuratus, which may then have been used in further
manufacturing processes at Accuratus. Therefore, beryllium from Brush
could have reached Brenda via Paul while they were married, with Paul
bringing it home directly from his employment at Brush, or via Altemose
or Paul prior to the marriage bringing it home from employment at
Accuratus (where at least some of the beryllium came from Brush).
Plaintiffs originally filed suit in state court. The suit named an
additional Defendant, Dennis Tretter, a Pennsylvania citizen who was an
Accuratus employee enforcing safety policies. On November 1, 2012,
Defendants removed the action to this Court, arguing that Tretter was
fraudulently joined to defeat diversity jurisdiction. Plaintiffs filed a motion
to remand dealing with that issue, which Judge C. Darnell Jones denied on
March 1, 2013. As discussed further below, Judge Jones’s order (as well

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as a subsequent order denying reconsideration on April 5, 2013) examined
Tretter’s potential liability in a lengthy footnote and, finding none, ruled
that Tretter’s joinder was unfounded and jurisdiction in this Court on the
basis of diversity was proper.
Plaintiffs then filed an amended complaint, and both Accuratus and Brush moved
to dismiss. This Court granted dismissal of several counts of the complaint; the dismissal
included the negligence claim against Accuratus, for reasons more fully recounted below.
All that remained were a claim for strict liability for abnormally dangerous activity
against Accuratus, negligence and two strict liability claims against Brush, and separate
counts for exemplary damages and Mr. Schwartz’s loss of consortium against both
Defendants. After this Court declined to certify its dismissal of the negligence claim
against Accuratus for interlocutory appeal, Plaintiffs settled and voluntarily dismissed
with prejudice all claims against Brush and also voluntarily dismissed with prejudice the
remaining claim against Accuratus (though the counts for exemplary damages and loss of
consortium were not specifically dismissed, they were of course dependent on the other
claims). This terminated the case, allowing Plaintiffs to appeal this Court’s dismissal of
the negligence claim against Accuratus.
As more fully explained in the discussion below, that dismissal of the negligence
claim against Accuratus was based on this Court’s reasoning that New Jersey precedent
should be interpreted to limit take-home liability to spouses of the employees who carry
home dangerous substances from defendant employers. On appeal, the Third Circuit
certified the question to the New Jersey Supreme Court for further clarification. The New
Jersey Supreme Court’s response did not draw any specific conclusions about this
particular case, but it did clarify that there should be no bright line limiting the duty to
spouses and provided some factors to consider in determining whether there is a duty

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based on the circumstances of each take-home exposure case. In turn, the Third Circuit
vacated this Court’s dismissal of the negligence claim against Accuratus and remanded
for further consideration in accordance with its own ruling and the New Jersey Supreme
Court’s guidance. This Court ordered supplemental briefing and oral argument, and now
considers the motion to dismiss anew with respect to the negligence claim against
Accuratus.

Discussion
An understanding of the issue for this remand must begin with a fuller description
of this Court’s reasons for the previous dismissal. This Court first determined that the
negligence claim presented a false conflict situation and ruled that New Jersey law
applied. As explained in the prior opinion, the New Jersey Supreme Court had allowed
for take-home exposure liability in the case of Olivo v. Owens-Illinois, Inc., holding that
companies working with asbestos “owed a duty to spouses handling the workers'
unprotected work clothing based on the foreseeable risk of exposure from asbestos borne
home on contaminated clothing.” 895 A.2d 1143, 1149 (N.J. 2006). This Court noted that
Olivo contained some language suggesting that the class of plaintiffs covered by takehome liability should be interpreted narrowly, including reference to “harm to a particular
individual,” id. at 1148, and countervailing concerns about “considerations of fairness
and policy” and “limitless exposure to liability” id. at 1148, 1150. The Olivo court further
described the duty as “focused on the particularized foreseeability of harm to the

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plaintiff's wife, who ordinarily would perform typical household chores that would
include laundering the work clothes worn by her husband.” Id. at 1150. 1
This Court was considerably influenced by an earlier ruling in the case made
before the matter was transferred to the undersigned. In that decision, Judge C. Darnell
Jones had already dismissed the claims against Tretter, a safety supervisor at Accuratus.
As explained in the undersigned’s prior opinion, Judge Jones had concluded that:
Because Tretter’s connection with Plaintiffs was through Accuratus, and
because of the timeline, the only causal routes from Tretter to Brenda are
either through Paul, before Brenda was married to or lived with him, or
through Altemose, to whom Brenda was of course never married. Judge
Jones held that the Olivo rule of take-home liability for clothes-handling
spouses could not be extended to cover either a non-spouse, non-connubial
roommate (Brenda’s relation to Altemose) or a non-cohabiting, unmarried
romantic partner (Brenda’s relation to Paul when he worked at Accuratus).
In other words, this Court had already essentially ruled that exposure chargeable to
Tretter through his work at Accuratus could not ground a claim because Tretter and
Accuratus were never linked to Mrs. Schwartz through a spousal relationship or even
romantic co-habitation. Under those circumstances, the undersigned was reluctant to
change the law of the case and conclude that New Jersey’s take-home liability should
cover Accuratus itself. The remand forces this Court to reconsider that position because,
notwithstanding Judge Jones’s decision regarding Tretter, 2 the New Jersey Supreme
Court’s further guidance forecloses reliance on a strict rule that limits the take-home
exposure duty to spouses.

1

Given that this Court has been instructed to broaden its interpretation of Olivo, it is worth noting that in
contrast to the language about particular individuals highlighted in this Court’s prior opinion, Olivo does
also state that liability in these cases “devolves to a question of foreseeability of the risk of harm to that
individual or identifiable class of individuals.” Olivo, 895 A.2d at 1148 (emphasis added).
2
It is conceivable that the claim against Tretter could be distinguished through choice-of-law analysis
because he was a Pennsylvania citizen, but such a determination is unnecessary to this decision.

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The Third Circuit certified to the New Jersey Supreme Court the following
question: “Does the premises liability rule set forth in Olivo v. Owens-Illinois, Inc., 895
A.2d 1143 (N.J. 2006), extend beyond providing a duty of care to the spouse of a person
exposed to toxic substances on the landowner’s premises, and, if so, what are the limits
on that liability rule and the associated scope of duty?”
The New Jersey Supreme Court’s response emphasized courts’ “stewardship of
the common law” and flexibility in developing rules on a fact-sensitive, case-by-case
basis. Schwartz v. Accuratus Corp., 139 A.3d 84, 90 (N.J. 2016). Given that approach,
the court explained that the Olivo holding did not establish a hard and fast spousal limit
on the take-home exposure duty:
Olivo does not suggest that the duty recognized must remain static
for all future cases—no matter the pleadings and proofs, including
unknown aspects of other toxins—and that take-home toxic-tort liability
must remain limited to a spouse handling take-home toxins. That simply
was an essential fact of the case on which we were called on to act, as a
court of common law, and determine whether, in the development of our
common law, a foreseeable duty could be recognized on the facts
presented. We held that it could. However, Olivo does not state, explicitly
or implicitly, that a duty of care for take-home toxic-tort liability cannot
extend beyond a spouse. Nor does it base liability on some definition of
“household” member, or even on the basis of biological or familial
relationships.
Id. at 90-91. Though the court refused to endorse a categorical limit, the opinion did
“note that no precedent from another jurisdiction, in a non-strict liability setting, has
found a duty in a take-home toxic-tort cause of action outside of a factual setting
involving household members, presumably because of the idiosyncratic nature of most
other interactions with a take-home toxin.” Id. at 91. Further, “chance contact with a
worker transporting home a toxic substance from another's premises should not suffice to
create a duty of care.” Id. at 92.

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The court declined to give particular answers for this case, stating that “a refined
analysis for particularized risk, foreseeability, and fairness requires a case-by-case
assessment in toxic-tort settings.” Id. The court reiterated the “paramount importance of
foreseeability” in that case-by-case assessment but noted that “considerations of fairness
and policy also inform the analysis as to whether a duty of care exists.” Id. (quotation
omitted). Finally, to guide the analysis in particular cases, the court pointed to several
important factors:
First, case law counsels that the relationship of the parties is, of necessity,
relevant and weighty. That would include an assessment not only of the
relationship between a defendant's employee and the person who is
exposed to the take-home toxin, but also the relationship between the
defendant itself and the injured person, in determining whether it would be
foreseeable, predictable, and just to find that the defendant owed a duty of
care to that injured person or class of individuals. To that end,
idiosyncratic encounters would be difficult to ever predict, even when
occurring within the home of the person on whom the toxin is transported.
Second, the opportunity for exposure to the dangerous substance and the
nature of the exposure that causes the risk of injury affects the
foreseeability analysis. Third, and related to the second factor, courts must
take into account the employer's knowledge of the dangerousness of
exposure, assessed at the time when the exposure to the individual
occurred and not later, when greater information may become available. In
a non-strict-liability negligence action, the dangerousness of the toxin,
how it causes injury, and the reasonable precautions to protect against a
particular toxin are relevant in identifying a foreseeable duty by a
landowner for off-premises exposure of dangerous toxins.
Id. at 91-92 (citation omitted).
This Court now considers that guidance with respect to the facts of this case,
looking first at the intertwined second and third factors just identified. These factors
concern the nature of the particular toxin’s dangerousness and the defendant’s awareness
thereof as well as the available safety procedures. Plaintiffs have argued in this case that
beryllium is a particularly insidious toxic substance. As alleged in the amended

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complaint, beryllium particulate can easily spread around and beyond the facility where it
originates, and may even be carried to a worker’s home on clothing. Once in a particular
location, beryllium particulate may in a sense lay in wait and become equally dangerous
after a period of time if it is cast back into the air by activities like vacuuming, dusting,
and laundering. The negative consequences that may follow beryllium exposure are quite
severe, including lung disease, dermatologic disease, cancer, or chronic beryllium disease
(as Mrs. Schwartz has), which may involve lung scarring, cough, fatigue, progressive
shortness of breath, and problems with other organs, among other symptoms. In their
briefing since before the appeal, Plaintiffs have further argued that beryllium, unlike
other toxic substances, does not have a clear dose-response; in other words, greater
exposure does not necessarily correlate with higher severity of harmful effects, and
extremely minor exposure may have severe consequences. Although this particular point
does not seem to be present in the amended complaint, there is little reason to require
Plaintiffs to formally add the allegation; they have argued it for some time, Defendant is
clearly on notice of the argument, the fact is represented in prior case law, and the parties
can easily address it further at the summary judgment stage if warranted. As for
preventive measures, at the very least a clothes-changing protocol seems to have been
obvious and relatively simple, because prior Defendant Brush employed such a procedure
while Accuratus did not (though Plaintiffs originally claimed even Brush’s protocol was
inadequate). In sum, this case allegedly concerns a toxin that was known to travel on
clothes to workers’ homes, can remain dangerous in the home for some time, and
importantly, can cause serious damage with only minimal exposure.

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This Court’s prior opinion already described the relevant relationships of the
parties. For a period of some months, Mrs. Schwartz dated the eventual Mr. Schwartz
while he worked for Defendant, frequently visiting his apartment and staying overnight.
Also living in the apartment was Gregory Altemose, another employee of Defendant.
Eventually, after Mr. and Mrs. Schwartz were married and Mr. Schwartz left Defendant’s
employ, Mrs. Schwartz moved in to the apartment and lived there while her nowroommate Altemose continued to work for Defendant. In addition to sharing space, Mrs.
Schwartz cleaned the apartment and did at least some laundry for both men. The length of
this period as roommates is not set forth in the complaint and is another matter that might
be relevant on summary judgment; however, despite Defendant’s focus on the very long,
forty-year span at issue in Olivo, it is not clear that foreseeability and duty are smoothly
proportional to an increase in the time period. It may be that a temporary arrangement of
a week or a month carries little weight, while a period of two years, one year, or even
several months carries about the same weight as forty years. This seems particularly true
when dealing with a toxic substance like beryllium, which may cause harm upon quite
limited exposure.
There appears to be no particular direct relationship here between Mrs. Schwartz
and Defendant. See id. at 91 (“That would include an assessment not only of the
relationship between a defendant's employee and the person who is exposed to the takehome toxin, but also the relationship between the defendant itself and the injured
person ….”). In some cases a defendant employer/landowner might have some particular
relationship with or knowledge of the injured party, such as perhaps inclusion on the
employee’s insurance policy or familiarity from company social functions, but the

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absence of a direct relationship does not seem to count much against duty and liability.
As a simple fact of human life, an employer must reasonably foresee that virtually all of
its employees live with or have repeated close contact with someone, unless there is good
reason to believe that its employees are disproportionately hermits and loners.
Taken together, the nature of the toxic substance and the relationships in this case
are sufficient to generate a duty. To be sure, Mrs. Schwartz never had the heavy legal
relationship of marriage with an employee of Defendant (at least not during initial
contamination—it may be that she was later exposed to re-suspended beryllium
particulate that had actually been brought to the home by the man who was then her
husband at the time she was exposed). But given this particular toxin’s danger with
minimal exposure and potential for re-suspension into the air, the duty-creating
relationship threshold in this case must be considered relatively low. That is to say, if
Defendant knew just a brief exposure could cause harm, this is not a case where the law
should insist upon the closest, longest, most serious relationship. It might still be
inappropriate to impose upon Defendant a duty to a random stranger on a bus or an
occasional visitor to the home of an employee. But a roommate, and alternately a
girlfriend making frequent visits and overnight stays, is not as a matter of law too remote
to entail foreseeability and create a duty. Because the analysis is, as the New Jersey
Supreme Court instructed, extremely sensitive to the particular facts of each case, a
different conclusion may be reached at the summary judgment stage, but the allegations
are sufficient at this point.
Bearing in mind that “considerations of fairness and policy” are always important,
id. at 92, it is worth noting that, wholly apart from questions of whether the relationships

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are close enough, the need to sort out causation will provide some limits on toxic
substance take-home liability. Because minor exposure may cause problems, it seems
possible that a stranger on a bus or in a store could be harmed by coming into contact
with a beryllium worker. But such a stranger is unlikely to even figure out how she was
exposed, let alone prove it in court. On the subject of policy, the Court must also note that
it has given no weight to the present-day realities of non-married cohabitation, which
Plaintiffs emphasize and Defendants decry as inapplicable to a claim for conduct a few
decades ago. The only reality of living arrangements necessary to the Court’s conclusion
is the fundamental recognition that nearly all people at all times have close relationships
with others, have regular contact with others in their homes, and in most cases live with
others who share space and housework. That reality means it may be reasonably
foreseeable to a Defendant employer working with a particularly insidious toxic
substance that material carried home on an employee’s clothes may harm someone at that
home who is a frequent overnight guest and romantic partner or a roommate sharing
living space and housework.

Conclusion
This Court’s prior grant of Defendant’s motion to dismiss the negligence claim at
issue was vacated on appeal. After applying the new legal guidance set forth during that
appeal process to the particular facts of this case, this Court now denies the motion to
dismiss and allows the negligence claim against Defendant Accuratus to proceed.
Plaintiffs’ amended complaint also stated claims in counts nine and ten for exemplary
damages and loss of consortium. The only ground asserted for dismissal of those claims

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in the original motion to dismiss was that they were derivative of the other counts, and in
fact, neither of them was ever actually dismissed, not by this Court’s order nor by
Plaintiffs’ voluntary dismissal. Those claims, therefore, may also proceed to the extent
they derive from the negligence claim against Accuratus.

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