Brewer v. Monsanto Corp.

• Decision Date: 15 August 1986
• Docket Number: No. 1-85-0071.,1-85-0071.
• Citation: 644 F. Supp. 1267
• Parties: Joyce BREWER, et al. v. MONSANTO CORPORATION, et al.
• Court: U.S. District Court — Middle District of Tennessee

644 F. Supp. 1267

Joyce BREWER, et al. v. MONSANTO CORPORATION, et al.

No. 1-85-0071.

United States District Court, M.D. Tennessee, Columbia Division.

August 15, 1986.

COPYRIGHT MATERIAL OMITTED

Lee England, William E. Boston, Boston Bates & Holt, P.C., Lawrenceburg, Tenn., Gerald J. Williams, Slap Williams & Cuker, Albert J. Slap, Mark R. Cuker, Ronald F. Brien, Jr., Philadelphia, Pa., for plaintiffs.

Richard Lodge, Bass, Berry & Sims, Frank C. Gorrell, Delta Anne Davis, Nashville, Tenn., for Monsanto Corp.

John L. Chambers, Chambers Wyckoff & Beckner, Nashville, Tenn., Frank C. Jones, James D. Miller, Charles H. Tisdale, Jr., M. Robert Thornton, J. Kevin Buster, Richard A. Schneider, James N. Gorsline, King & Spaulding, Atlanta, Ga., for Dart & Kraft (a/k/a Duracell).

M. Clark Spoden, Dearborn & Ewing, Nashville, Tenn., for Mallory Capacitor Co., and Emhart Corp.

Leonard Rivkin, Stanley Pierce, Joseph Ortega, Rivkin Radler Dunne & Bayh, Garden City, N.Y., for Emhart Corp.

MEMORANDUM

WISEMAN, Chief Judge.

This case is now before the Court on motions to dismiss filed by two of the three defendants. The plaintiffs' central contention is that defendant Monsanto manufactured and defendants Duracell and Emhart used polychlorinated biphenyls (PCBs) and associated toxic chemicals¹ in a way that caused injury to the plaintiffs. Defendant Monsanto, manufacturer of the PCBs has not filed a motion to dismiss. As used hereinafter, defendants shall refer only to defendant Duracell and defendant Emhart, unless otherwise noted. The two defendants were the successive owners of an electronic component plant in Waynesboro, Tennessee. The plaintiffs fall into three groups: the employees of both defendants, the employees of the second owner defendant, and the family members of the other two groups.

Defendants both argue that plaintiffs' complaint should be dismissed for defective pleading and that worker's compensation exclusivity bars the plaintiffs' claims. Defendant Duracell also argues that as a vendor of realty it cannot be held liable for what it left on the land. Plaintiffs argue that their complaint is adequate and that their claims are not barred by worker's compensation exclusivity. Plaintiffs also argue that defendant Duracell is liable for the injuries caused by the contamination Duracell left on the site, since the contamination created a nuisance.

This Court has jurisdiction solely on the basis of diversity jurisdiction. Therefore, this Court is obligated to apply the substantive law of the state of Tennessee. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In areas in which Tennessee state law is unsettled or unclear, this Court must undertake to predict what the Tennessee courts would do with the question of substantive law before this Court. See Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956). The questions of procedure that have been raised by the defendants are governed by federal law. See Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Since this case comes to us now on a motion to dismiss, federal, procedural law requires that the Court take all of the allegations of plaintiffs' complaint as true and resolve all inferences from the complaint in plaintiffs' favor. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

I. Facts

Defendant Duracell International, Inc., owned a manufacturing plant in Waynesboro, Tennessee, until July 30, 1979.² On July 30, 1979, defendant Duracell sold the plant to Emhart Industries, Inc. The Waynesboro plant was used to manufacture electronic capacitors. According to plaintiffs, the manufacturing involved the extensive use of PCBs. Plaintiffs allege that PCBs were purchased for use at the plant by both defendants. The defendants are alleged to have been negligent, in their use of the toxic chemicals, causing dangerous contamination. Defendants are also alleged to have fraudulently concealed from the plaintiffs the true nature of the contamination and the danger that it posed due to the desire for economic advantage in wages and safety expenditures.

II. Defective Pleading

The defendants have moved to dismiss plaintiffs' complaint for defective pleading. The defendants allege that the complaint is confusing because it fails to separate adequately the claims raised and because the allegations of fraud are not pled with sufficient particularity. Fed.R.Civ.P. 10(b) and 9(b). Plaintiffs in response have amended their complaint as well as filing a brief. Although most of the issues of this diversity case are governed by Tennessee law, the procedural questions raised here are to be determined under federal law. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965).

A. Rule 10(b), Separation of Claims

The portion of Rule 10(b) relied upon by defendants provides "each claim founded upon a separate transaction or occurrence and each defense other than denial shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matter set forth." Fed.R. Civ.P. 10(b). The policy of this rule, as of most of the Federal Rules of Civil Procedure, is to facilitate clarity and succinctness in pleading. The defendants argue that it is not clear from plaintiffs' complaint exactly which plaintiffs are claiming what relief.

Plaintiffs' complaint is framed as a class action complaint. The plaintiffs fall into three groups: (1) named plaintiffs who were employed by both defendants; (2) sub-class plaintiffs who were employed only by defendant Emhart; and (3) a third group. The third group consists of relatives of the named plaintiffs and sub-class plaintiffs. Plaintiffs have not given the third group a separate label, which does lead to some confusion. In this opinion, the Court will refer to the third group as family member plaintiffs.

Plaintiffs set out, in paragraph 29 of their complaint, ten injuries allegedly suffered by all plaintiffs, and in paragraph 30 the injuries allegedly suffered by some of the family member plaintiffs. In the ad damnum of count I plaintiffs state a general prayer for relief. The allegations of injury and prayer for relief are incorporated by reference in the twelve counts of plaintiffs' complaint. Defendants allege that this form of pleading can be construed to allege a loss of consortium claim based on a worker's compensation claim, which would be clearly meritless under Tennessee law. See Nichols v. Benco Plastics, Inc., 225 Tenn. 334, 469 S.W.2d 135 (1971). Defendants also claim that the complaint can be construed to raise a lost wages claim for non-employees, which would also be meritless.

Adoption by reference, although permitted by Rule 10(c), Fed.R.Civ.P., can lead to internal inconsistency in a pleading. This inconsistency is not fatal. Fed.R.Civ.P. 8(e)(2). Moreover, the Court is not convinced from reading plaintiffs' complaint that given a fair reading the complaint is so confusing as to prejudice defendants. Most of the ambiguity that defendants seek to read into plaintiffs' complaint stems from plaintiffs' failure to label the three groups into which plaintiffs fall.

Failure to label the groups may be poor pleading by the plaintiffs, but it does not warrant the harsh remedy of dismissal. Defendants would be entitled to dismissal of the complaint only if they first had moved for a more definite statement under Rule 12(e), pointing "out the defects complained of and the details desired." Fed.R. Civ.P. 12(e). If plaintiffs had not complied with an order granting the motion, then the Court might strike the offending portions or dismiss the action under Rule 41(b). See 5 Wright & Miller, Federal Practice and Procedure (Civil) Section 1324 (1969); 27 Federal Procedure (Lawyer's Edition) Section 62:104 (1984).

B. Rule 9(b), Pleading of Fraud

Defendants also argue that plaintiffs' allegations of fraud are insufficiently pled. Rule 9(b) requires that "in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Plaintiffs allege that during the period from 1969 to 1978 defendants knew the plant was contaminated but fraudulently misrepresented six material facts and failed to disclose, despite a duty to disclose, five material facts. Plaintiffs allege that the defendants acted individually and in concert to conceal from plaintiffs these facts. Plaintiffs allege that had they known these facts they would have either quit or demanded higher wages, indicating reliance injury. Defendants argue that these allegations are insufficient because plaintiffs do not allege which individual agent or employee made which statements and on what date the statement was made.

Defendants support their claim of insufficiency by citing two Sixth Circuit cases as well as a number of district court cases. Two two Sixth Circuit cases provide sufficient guidance for this Court to discern the proper course. Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389 (6th Cir. 1975), involved a motion to dismiss that was converted to a summary judgment motion. In Dayco, the plaintiffs had had an opportunity to conduct substantial discovery and the evidence overwhelmingly indicated that plaintiff could not make out the elements of fraudulent concealment. Although the Sixth Circuit did discuss Rule 9(b) in Dayco, the court was predominantly concerned with a Rule 56 summary judgment motion. The context of Dayco is so far afield from the circumstances of this case as to have no bearing.

Bender v. Southland, 749 F.2d 1205 (6th Cir.1984), is procedurally more apropos. In Bender, plaintiff claimed a violation of the Sherman Antitrust Act and of the Racketeer Influenced and Corrupt Organizations Act (RICO). The RICO claim, which the district court had dismissed, was based on mail fraud. The court exposited in detail the elements required to ultimately prove a ...