Barth v. Firestone Tire and Rubber Co.
| Decision Date | 01 September 1987 |
| Docket Number | No. C-85-20534-RPA.,C-85-20534-RPA. |
| Court | U.S. District Court — Northern District of California |
| Parties | Harry BARTH, on Behalf of Himself and All Others Similarly Situated, Plaintiff, v. The FIRESTONE TIRE AND RUBBER COMPANY, a corporation, Does One (1) Through One Thousand (1,000), Inclusive, Defendants. |
Stemple & Boyajian, Century City, Cal., Deason, Martin & Harrison, Los Angeles, Cal., for plaintiff.
McCutchen, Doyle, Brown & Enersen, San Jose, Cal., for defendants.
REVISED ORDER RE MOTION TO DISMISS
The defendant Firestone Tire and Rubber Company ("Firestone") brings this motion to dismiss the Second Amended Complaint (the "Complaint") in this putative class action pursuant to Fed.R.Civ.P. 12(b)(6). The defendant argues that the plaintiff's claims here are precluded by the exclusivity provisions of the California Workers' Compensation system. Alternatively, the defendant asserts that the plaintiff fails to state a claim upon which relief can be granted.
The Court must state, preliminarily that this case presents troubling and serious questions that go to the very heart of American jurisprudence. It presents no questions that are susceptible to easy answers, and the plaintiff describes a tragic fact situation.
In this, as in all motions to dismiss, the Court accepts as true all well pleaded allegations in the Complaint, and it views all facts and makes all inferences in the light most favorable to the party opposing the motion. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969); T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 631 (9th Cir.1987). Viewing the complaint in that light, the plaintiff asserts the following facts.
Defendant Firestone opened a tire manufacturing facility in Salinas California, in 1963. That Salinas plant used various chemical compounds to manufacture tires. Those chemical compounds included benzene, other heavy metal compounds and certain other industrial toxins.
Subsequent to the opening of the plant, officials determined that exposure to benzene and the other heavy metals used here was highly correlated to the subsequent development of certain diseases. The plaintiff asserts that the exposure here could lead to leukemia, cancer, respiratory disease and injury, diseases of the central nervous system, kidneys, liver and other organs, injuries to the immune system, and injuries to the reproductive systems of the workers so as to lead to birth defects in the workers' progeny. There is an extended latency period between exposure to the substances and the development of clinically diagnosable symptoms. Firestone possessed both actual and constructive knowledge of the harmfulness of the substances.
The plaintiff alleges that federal and state laws and regulations prohibit the exposure of unprotected workers to the hazardous substances at issue here. He asserts that federal and state laws required Firestone to provide the workers with protective clothing, safety devices and safe premises. Pursuant to the law, Firestone should have eliminated the use of all the hazardous substances or provided its workers with protective equipment or procedures.
The plaintiff alleges that Firestone neither discontinued the use of the hazardous substances nor provided its workers with any protective equipment or procedures. Instead, he alleges that Firestone fraudulently concealed the information and the danger from its workers. Firestone allegedly disguised the use of the hazardous substances, denied that it was using these toxic substances and intentionally misinformed its employees about the safety and identity of the substances. Firestone intentionally misrepresented to its workers that there were none of the hazardous substances present in the work place and that no safety precautions were needed. The plaintiff asserts that Firestone did this with full knowledge of the health danger presented by the substances.
The plaintiff thus alleges that Firestone exposed all of its manufacturing employees to toxic substances without their consent. Firestone allegedly continued this practice from 1963 until 1981, when Firestone closed the plant. The plaintiff estimates that Firestone's conduct exposed at least 5,000 employees to the toxic substances.
The plaintiff worked in the plant from 1963 until he resigned in 1980, and he alleges that Firestone's conduct exposed him to the toxic substances. The plaintiff does not assert the existence of any presently diagnosable physical injury. He also seeks to assert claims on behalf of all the exposed workers, but the Court does not here reach the class issues.
Through this Company, the plaintiff asserts the following claims: 1) fraudulent active concealment and misrepresentation; 2) battery; 3) intentional infliction of emotional distress; 4) unfair and deceptive trade practices; and 5) equitable relief.
The plaintiff does not seek compensation for an injury that can be clinically diagnosed under the present state of medical science. Instead, he seeks the creation of a medical monitoring fund to provide an underlying remedy for the entire class. The plaintiff also seeks other equitable relief and punitive damages.
The Court previously dismissed two earlier filed complaints in this action. It will now address the motion to dismiss this Complaint.
Discussion of the law
Defendant Firestone moves to dismiss under Rule 12(b)(6) on the ground that the plaintiff failed to allege a present injury. This issue becomes a threshold one because many of the following jurisdictional issues depend on the resolution of whether the Complaint alleges an injury. For that reason, the Court's analysis will begin with this question.
The Complaint does not allege any symptom of injury which can be clinically diagnosed at this time. Instead, he alleges two forms of physical injury. He asserts an injury to his immune system that renders him more susceptible to developing various forms of cancer. He further asserts an injury purely through the increased risk of cancer. The plaintiff also asserts injury through fear and emotional distress. Finally, the plaintiff asserts injuries on behalf of the class on the ground that it is a statistical and medical certainty that some members of the class will develop the resultant diseases.
The plaintiff argues, and this Court agrees, that many of the problems presented are due to failures in the current state of medical science and in the development of the legal system. Current medical science cannot state whether or how exposure to toxic chemicals affects individuals. It cannot yet detect the present effect of the exposure, and, therefore, it cannot supply to the legal system information concerning the nature of present injury or of causation. In the absence of that information, the legal system now struggles to adapt.
The Complaint alleges that the plaintiff has suffered a direct injury to his immune system and that the diseases are currently present in the plaintiff in their latency stage. This Court must accept as true all well pleaded allegations in the Complaint for the purposes of this motion to dismiss, and the Court cannot address problems of proof at this stage in the litigation. Accordingly, the Court accepts that the plaintiff has suffered a direct injury to his immune system and a further injury through the presence of diseases in their latency period. The Court further accepts that this injury is a current, physical injury. As such, those allegations will suffice to state an injury.
The plaintiff also clearly asserts a claim for emotional distress. He alleges that he suffers from fear of contacting serious and/or lethal diseases as a result of his exposure to the toxic chemicals at the Firestone plant. These emotional injuries state a present injury upon which some claims for relief may be based.
The plaintiff's claim for injuries based directly on an increased risk of contacting cancer present a much more difficult question for this Court. The plaintiff cannot assert that he will contact cancers or other diseases from the alleged exposure. However, he does claim that he now faces a greatly increased risk of contacting those diseases.
This issue goes to the very heart of our tort system, and it divides courts and commentators. The tort system evolved to redress the wrongs of a society where injuries were much more direct. The issues of lengthy latency periods and increased risks of cancers are relatively new to our system of laws. The greatest lesson that we can draw from the common law of torts to apply here is that the system must evolve to meet the needs of society.
According to Professors Prosser and Keeton:
The administration of the law becomes a process of weighing the interests for which the plaintiff demands protection against the defendant's claim to untrammeled freedom in the furtherance of defendant's desires, together with the importance of those desires themselves. When the interest of the public is thrown into the scales and allowed to swing the balance for or against the plaintiff, the result is a form of `social engineering' (Pound, Theory of Social Interests, 1920, 4 Pub.Am.Soc.Society 15). A decisionmaker might deliberately seek to use the law as an instrument to promote that `greatest happiness of the greatest number' (Jeremy Bentham's phrase, although an acknowledged translation from an Italian source.), or instead might give greater emphasis to protecting certain types of interests of individuals as fundamental entitlements central to an integrity of person that the law upholds above all else. This process of `balancing the interests' is by no means peculiar to the law of torts, but it has been carried to its greatest lengths and has received its most general conscious recognition in this field.
Prosser and Keeton on the Law of Torts 16-17 (5th ed....
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