Davis v. Ace Hardware Corp.

• Decision Date: 21 February 2014
• Docket Number: Civil Action No. 12-1185-SLR-CJB
• Parties: HARRY A. DAVIS and MADONNA S. DAVIS, Plaintiffs, v. ACE HARDWARE CORPORATION., et al., Defendants.
• Court: U.S. District Court — District of Delaware

HARRY A. DAVIS and MADONNA S. DAVIS, Plaintiffs, v. ACE HARDWARE CORPORATION., et al., Defendants.

Civil Action No. 12-1185-SLR-CJB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Dated: February 21, 2014

REPORT AND RECOMMENDATION

Plaintiffs Harry A. Davis and Madonna S. Davis ("Plaintiffs") filed this action for injury allegedly caused by exposure to asbestos against a multitude of defendants (collectively, "Defendants"). (D.I. 1, ex. A) Presently pending before the Court are Defendant Paccar, Inc.'s ("Paccar") Motion to Dismiss for Failure to State a Claim, filed pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Motion to Dismiss for Failure to State a Claim"), (D.I. 64); Defendants' Motion to Dismiss Plaintiffs' Complaint for Failure to Comply with Florida's Asbestos and Silica Compensation Fairness Act ("Motion to Dismiss for Failure to Comply with Florida's Asbestos Act"), also filed pursuant to Rule 12(b)(6), (D.I. 283); and Defendants' Motion to Stay All Discovery and Pretrial Deadlines ("Motion to Stay"), (D.I. 287). For the reasons that follow, the Court recommends that the Motion to Dismiss for Failure to Comply with Florida's Asbestos Act be GRANTED, recommends that the Motion to Dismiss for Failure to State a Claim be DENIED as moot, and orders that the Motion to Stay is GRANTED.

I. BACKGROUND

A. Factual Background

Plaintiffs Harry A. and Madonna S. Davis are a married couple residing in the State of Florida. (D.I. 1, ex. A at ¶¶ 1-2, 99) Plaintiffs allege, inter alia, that while living and working in Florida, Mr. Davis was wrongfully exposed to asbestos and/or asbestos-containing products which were "mixed, mined, manufactured, distributed, sold, removed, installed and/or used" by the Defendants, and that as a result of this exposure, Mr. Davis developed "[l]ung [c]ancer . . . and other asbestos-related injuries and diseases." (Id. at ¶¶ 54-55, 57) Plaintiffs named 50 companies as Defendants. (See id. at ¶¶ 3-52) Though the counts in Plaintiffs' Complaint contain no headings, which makes it difficult to ascertain the specific causes of action they represent, all appear to be state common law claims relating to the alleged asbestos exposure (such as claims for negligence, fraud, product liability, premises liability, conspiracy and loss of consortium). (Id. at ¶¶ 53-100)

B. Procedural Background

This action was originally commenced in the Superior Court of the State of Delaware on July 19, 2012. (D.I. 1, ex. A) On September 21, 2012, the action was removed to this Court by defendant United Technologies Corporation based on federal officer jurisdiction, 28 U.S.C. § 1442(a)(1). (D.I. 1) This case was referred to the Court by Judge Sue L. Robinson on December 13, 2012, to conduct all proceedings and hear and determine all motions, through and including the pre-trial conference. (D.I. 71)

On November 16, 2012, Paccar filed its Motion to Dismiss for Failure to State a Claim and its opening brief in support of that Motion. (D.I. 64, 65) After a late-filed response from Plaintiffs, the motion was fully briefed on April 22, 2013. (D.I. 149, 156).

Before the Court ruled on the Motion to Dismiss for Failure to State a Claim, allDefendants filed their Motion to Dismiss for Failure to Comply with Florida's Asbestos Act on September 12, 2013. (D.I. 283) This motion seeks dismissal of all counts based upon Plaintiffs' alleged failure to comply with Florida's Asbestos and Silica Compensation Fairness Act, FLA. STAT. §§ 774.201-209 ("Florida's Asbestos Act" or "the Act"). (D.I. 284 at 1) This motion was fully briefed as of October 15, 2013, (D.I. 334), and the Court heard oral argument on the motion on October 29, 2013.

On September 18, 2013, Defendants filed their Motion to Stay, seeking to stay all discovery and scheduling deadlines until after the Court's resolution of the Motion to Dismiss for Failure to Comply with Florida's Asbestos Act. (D.I. 287) Before the Court ruled on the Motion to Stay, however, the parties agreed upon and submitted additional stipulations (which the Court later granted) staying all pretrial deadlines and certain discovery deadlines until certain further rulings of the Court. (D.I. 320, 338)

II. LEGAL STANDARD

The sufficiency of pleadings for non-fraud cases is governed by Federal Rule of Civil Procedure 8, which requires "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a)(2). When presented with a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court conducts a two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the court separates the factual and legal elements of a claim, accepting "all of the complaint's well-pleaded facts as true, but [disregarding] any legal conclusions." Id. at 210-11. Second, the court determines "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). In assessing theplausibility of a claim, the court must '"construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Fowler, 578 F.3d at 210 (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

III. DISCUSSION

The Court will here primarily address Defendants' Motion to Dismiss for Failure to Comply with Florida's Asbestos Act.¹ As the Court's resolution of this motion is dispositive and would require the submission of a new complaint (if Plaintiff is able to make such a submission), the Motion to Dismiss for Failure to State a Claim (a motion based on the content of the initial Complaint) is thus moot. And to the extent that the Motion to Stay is not already moot in light of the Court's subsequent orders that certain discovery and pretrial deadlines be stayed pending resolution of Defendants' Motion to Dismiss for Failure to Comply with Florida's Asbestos Act, (D.I. 320, 338), the Court orders that the motion be granted, and further orders that all discovery and scheduling deadlines are stayed unless and until a new complaint is filed. The Court will now turn to the remaining motion.

A. Background Regarding the Act's Requirements

In 2005, after being enacted by the Florida Legislature, Florida's Asbestos Act became effective. Am. Optical Corp. v. Spiewak, 73 So.3d 120, 123 (Fla. 2011). This Act made "significant changes to the cause of action for damages resulting from an exposure to asbestos." Id. Among those changes are the provisions in Sections 774.204 and 774.205 of the Act, which are the subject of Defendants' instant motion.

Section 774.205(2), in relevant part, states as follows:

A plaintiff in a civil action alleging an asbestos or silica claim must include with the complaint or other initial pleading a written report and supporting test results constituting prima facie evidence of the exposed person's asbestos-related or silica-related physical impairment meeting the requirements of s. 774.204(2), (3), (5), or (6).

FLA. STAT.§ 774.205(2) (emphasis added). Of the various sections incorporated by Section 774.205(2), the parties agree that Section 774.204(3) is relevant here, as this section sets forth the "requirements" of a "prima facie showing" for a plaintiff who is a "smoker" and who brings an asbestos claim based upon "cancer of the lung, larynx, pharynx, or esophagus[.]" (D.I. 284 at 2-4); FLA. STAT. § 774.204(3). Florida's Asbestos Act defines a "[s]moker" as a person who "has smoked cigarettes or used other tobacco products on a consistent and frequent basis within the last 15 years." FLA. STAT. § 774.203(29). It is not disputed by either Plaintiffs or Defendants that Mr. Davis qualifies as a "smoker" under the Act. (D.I. 284 at 4 & exs. B-C; D.I. 321; D.I. 342 (hereinafter "Tr.") at 47)

Section 774.204(3) dictates that such a plaintiff "may not file or maintain a civil action . . . in the absence of a prima facie showing that includes all of the following requirements":

(a) A diagnosis by a qualified physician who is board certified in pathology, pulmonary medicine, or oncology, as appropriate for the type of cancer claimed, of a primary cancer of the lung, larynx, pharynx, or esophagus, and that exposure to asbestos was a substantial contributing factor to the condition.

(b) Evidence sufficient to demonstrate that at least 10 years have elapsed between the date of first exposure to asbestos and the date of diagnosis of the cancer.

(c) Radiological or pathological evidence of asbestosis or diffuse pleural thickening or a qualified physician's diagnosis of asbestosis based on a chest X ray graded by a certified B-reader as at least 1/0 on the ILO scale and high-resolution computed tomography supporting the diagnosis of asbestosis to a reasonable degree of medical certainty.

(d) Evidence of the exposed person's substantial occupational exposure to asbestos. If a plaintiff files a civil action alleging an asbestos-related claim based on cancer of the lung, larynx, pharynx, or esophagus, and that plaintiff alleges that his or her exposure to asbestos was the result of extended contact with another exposed person who, if the civil action had been filed by the other exposed person, would have met the substantial occupational exposure requirement of this subsection, and the plaintiff alleges that he or she had extended contact with the exposed person during the time period in which that exposed person met the substantial occupational exposure requirement of this subsection, the plaintiff has satisfied the requirements of this paragraph. The plaintiff in such a civil action must individually satisfy the requirements of this subsection.

(e) If the exposed person is deceased, the qualified physician, or someone working under the direct supervision and control of a qualified physician, may obtain the evidence

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