Anderson v. Airco, Inc., C.A. No. 02C-12-091 HDR (DE 6/30/2004), C.A. No. 02C-12-091 HDR
| Decision Date | 30 June 2004 |
| Docket Number | C.A. No. 02C-12-091 HDR |
| Parties | RICHARD V. ANDERSON, et. ux. Plaintiffs, v. AIRCO, INC., et al. Defendants. |
| Court | United States State Supreme Court of Delaware |
Robert Jacobs, Esq. and David A. Arndt, Esq., Jacobs & Crumplar, P.A., Wilmington, Delaware, for Plaintiffs.
Matthew P. Donelson, Esq. and Joel M. Doner, Esq., Wilbraham, Lawler & Buba, P.C., Wilmington, Delaware for Defendant Airco, Inc.
James W. Semple, Esq., Morris, James, Hitchens & Williams, LLP, Wilmington, Delaware for Defendant Air Products & Chemicals, Inc.
Albert Manwaring, IV, Esq. and Joseph S. Naylor, Esq., Pepper Hamilton, LLP, Wilmington, Delaware for Defendant Allied Signal, Inc.
John L. Reed, Esq. and Gary W. Lipkin, Esq., Duane Morris, Wilmington, Delaware for Defendants American Chemistry Council, B.F. Goodrich Corp., Conoco Inc., The Dow Chemical Company, Epec Polymers Inc., ICI Americas, Inc., PPG Industries, Inc., Pactiv Corp., PolyOne Corporation, Shell Oil Co., Tenneco Inc., Tenneco Automotive, Inc., Union Carbide Corp., Uniroyal Inc. and Zeneca, Inc.
Michael P. Kelly, Esq., McCarter & English, LLP, Wilmington, Delaware for Defendant Bayer CropScience Inc.
Randall E. Robbins, Esq., Ashby & Geddes, Wilmington, Delaware for Defendant Borden Chemical, Inc.
Adam C. Balick, Esq., Balick & Balick, Wilmington, Delaware for Defendant Bridgestone/Firestone, Inc.
John D. Balaguer, Esq. and William L. Doerler, Esq., White & Williams, Wilmington, Delaware for Defendants Chevron USA Inc., Gulf Oil Corp. and Monsanto Company
Frederick L. Cottrell, II, Esq. and Alyssa Schwartz, Esq., Richards, Layton & Finger P.A., Wilmington, Delaware for Defendant Occidental Oxychem.
Jeffrey L. Moyer, Esq. and Anne Shea Gaza, Esq., Richards, Layton & Finger P.A., Wilmington, Delaware for Defendant Formosa Plastics Corporation.
Somers S. Price, Jr., Esq. and W. Harding Drane, Jr., Esq., Potter, Anderson & Corroon LLP, Wilmington, Delaware for Defendant Gencorp and Olin Corp.
Donald E. Reid, Esq., Morris, Nichols, Arsht & Tunnell, Wilmington, Delaware for Defendant Georgia-Pacific Corp.
Kevin J. Connors, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington, Delaware for Defendant The Goodyear Tire & Rubber Company.
James P. Hall, Esq., Phillips, Goldman & Spence, Wilmington, Delaware for Defendant Society of Plastics Industry, Inc.
Richard D. Allen, Esq., Morris, Nichols, Arsht & Tunnell, for Defendant Westlake Vinyls Inc.
David C. Malatesta, Jr., Esq., Kent and McBride, P.C., Wilmington, Delaware, for Defendant Whittaker Corporation
Now, therefore, for the reasons stated in the Opinion filed this date, IT IS ORDERED THAT:
1. Counts Two, Four, and Five of the Complaint filed by Richard V. and Sheri R. Anderson are dismissed as to Defendants The American Chemistry Council, Conoco, Inc., B.F. Goodrich Company, ICI Americas, Inc., PolyOne Corp., PPG Industries, Inc., Shell Oil Co., Uniroyal, Inc. and Zeneca, Inc.
2. In all other respects, the Defendants' motions to dismiss are denied.
OPINIONUPON DEFENDANTS' MOTIONS TO DISMISS DENIED IN PART AND GRANTED IN PART
Plaintiff Richard V. Anderson and his wife, Sheri R. Anderson, have filed this civil action against Airco, Inc., and thirty-five other defendants.1 The Andersons seek compensatory and punitive damages for injuries allegedly sustained as a result of prolonged workplace exposure to vinyl chloride monomer ("VCM"), a chemical compound manufactured, marketed, and utilized by various representatives active in the polyvinyl industry.
A majority of the defendants have filed motions to dismiss. Three motions to dismiss are before the Court and I will address each of these motions in this opinion. The first motion is a consolidated motion filed by Defendants The American Chemistry Council; Conoco Inc.; B.F. Goodrich Company;2 ICI Americas, Inc.; PolyOne Corporation; PPG Industries, Inc.; Shell Oil Company; Uniroyal, Inc.; and Zeneca, Inc. (collectively "Consolidated Defendants").3 The two remaining motions to dismiss have been individually filed by Defendants Georgia-Pacific Corporation and the Society of the Plastics Industry, Inc. ("SPI").4
For the reasons set forth below, the motions are denied in part and granted in part. I first hold that federal law does not preempt the Andersons' state common law claims. The negligence claims in Counts One and Three are not subject to dismissal because the Andersons have pled with particularity each element of the common law tort of negligence. Similarly, because the Andersons have sufficiently alleged each element of the torts of conspiracy and aiding and abetting, Counts Six and Seven will not be dismissed. Count Eight, asserting a derivative cause of action for loss of consortium, therefore also survives the motions to dismiss.
Counts Two, Four, and Five, on the other hand, each fail to state a cause of action upon which relief may be granted. Count Two is dismissed because Delaware law applies to this case and a claim of strict products liability is not recognized here. Finally, Counts Four and Five which involve alleged fraud are dismissed because the Andersons have failed to allege with particularity facts showing reliance by Anderson or facts showing an intent by the moving defendants to induce action by him.
From 1986 to 1993, Plaintiff Richard V. Anderson was employed by the Georgia Gulf Corporation, a subsidiary of Georgia-Pacific and manufacturer and marketer of chlorovinyl products. In 2002, Anderson contracted glioblastoma multiform, a type of brain cancer, allegedly as a result of handling VCM compounds at the company's plant in New Castle, Delaware. In December 2002, Anderson, along with his wife, Sheri R. Anderson, filed suit against Consolidated Defendants, Georgia-Pacific, SPI (collectively "Defendants"), and others not involved in this motion, alleging eight instances of tortious conduct on the part of all defendants, who variously comprise suppliers, marketers, and manufacturers in the vinyl compound industry.5 Specifically, the Andersons allege: negligent failure to warn of the known hazards of VCM (Count One); strict products liability (Count Two); negligent and intentional failure of Georgia-Pacific individually to provide a safe workplace (Count Three); reckless failure to provide sufficient warning of the dangers of VCM (Count Four); fraudulent concealment and misrepresentation of the dangers of VCM (Count Five); conspiracy to commit fraud, misrepresentation, and fraudulent concealment of the dangers of VCM (Count Six); aiding and abetting the alleged fraudulent concealment (Count Seven); and loss of consortium (Count Eight).
The Andersons claim that Defendants collectively engaged in an industry-wide campaign to conceal the ill effects of VCM exposure, and that, in particular, Anderson's brain cancer was caused by his unprotected handling of this compound. Vinyl chloride monomer (C2H3CI) is a colorless gas used primarily in the production of polyvinyl chloride (PVC) homopolymer and copolymer resins, a construction-related material used in, among other applications, flooring and piping.6 A known carcinogen, several studies have linked prolonged exposure to VCM to various forms of cancer.7 The compound is also addressed in the Occupational Safety and Health Act of 1970 ("OSHA"),8 the Clean Air Act of 1970,9 and accompanying federal regulations.10
The Andersons originally filed this action in Superior Court, Defendants removed the case in January 2003 to the United States District Court for the District of Delaware,11 claiming questions of federal law predominated the Andersons' complaint. In an Order dated July 28, 2003, the District Court remanded the case to this Court.12 Defendants then filed the pending motions to dismiss.
A Rule 12(b)(6) motion to dismiss requires the Court to determine whether the plaintiff may recover under any reasonably conceivable set of circumstances susceptible to proof under the complaint.13 Dismissal is warranted where the plaintiff has failed to plead facts supporting an element of the claim, or that under no reasonable interpretation of the facts alleged could the complaint state a claim for which relief might be granted.14 Although the trial court need not "accept every strained interpretation of the allegations[,]" a plaintiff is "entitled to all reasonable inferences that logically flow from the face of the complaint."15 As a general rule, vagueness and lack of detail are insufficient grounds for dismissal.16
Special rules of pleading apply to claims of fraud, negligence, or mistake under Delaware Civil Rule 9(b). A complaint alleging fraud, negligence, or mistake must state with particularity the showing the condition of mind.17 In the fraud context, a plaintiff must refer to the time, place, and contents of the false representations, as well as the identity of and benefit to the person making the alleged misrepresentations.18 To sufficiently plead negligence, a defendant must be put on notice of what duty was breached, who breached it, the breaching act, and the party upon whom the act was performed.19
Consolidated Defendants first claim that federal workplace safety laws preempt all of the Andersons' allegations of misconduct. They argue that their cause of action comprises, in essence, a claim of inadequate warnings, a subject specifically addressed by federal law. In response, the Andersons contend that the federal safety legislation is not meant to supercede all state tort law. According to the Andersons, their claims are grounded in state common law and do not implicate any federal regulatory scheme.
OSHA is designed to remedy the "substantial burden" that "personal injuries and illnesses arising out of work situations...
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