Higgins v. E.I. DuPont de Nemours & Co., 87-1739

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation863 F.2d 1162
Docket NumberNo. 87-1739,87-1739
Parties, Prod.Liab.Rep.(CCH)P 12,007 Mary Ann HIGGINS; Ronald Jones, as personal representative of the estates of Crystal N. Jones and Esther S. Jones; Mary Williams; Gilbert Allen; Sharon Patterson; Kevin P. Higgins, as personal representative of the estate of Genieve M. and Bridgette M. Higgins, Plaintiffs-Appellants, v. E.I. DuPONT de NEMOURS & COMPANY, Defendant-Appellee, and Dow Chemical Company; Union Carbide Corporation; Eastman Chemical Products, Inc.; Mayor and City Council of Baltimore, Defendants.
Decision Date23 December 1988

Alison Daryl Kohler (Phillips P. O'Shaughnessy, Sandbower, Gabler & O'Shaughnessy, P.A., Alex S. Katzenberg, III, Cohen, Snyder, McClellan, Eisenberg & Katzenberg, P.A. on, brief), for plaintiffs-appellants.

Pamela Janice White (Jervis S. Finney, Ober, Kaler, Grimes & Shriver, William E. Gordon, Jr., on brief), for defendant-appellee.

Before RUSSELL, MURNAGHAN and SPROUSE, Circuit Judges.

MURNAGHAN, Circuit Judge:

Plaintiffs Higgins and Jones appeal from the district court's order granting summary judgment in favor of defendant, E.I. DuPont de Nemours & Co., Inc. ("DuPont"), regarding their survival actions. Plaintiffs also appeal the dismissal of their wrongful death actions, maintaining that they were not statutorily barred as untimely because of DuPont's fraudulent concealment of their claims. Finally, plaintiffs argue that this case was improperly removed from the Circuit Court of Baltimore, Maryland. Finding that diversity existed when summary judgment was entered and that summary judgment was proper, we affirm.

Because of the jurisdictional issue, a brief review of the procedural posture of the case is necessary before reviewing the district court's action on the merits. On December 9, 1985, plaintiffs filed their original complaint in the United States District Court for the District of Maryland (S-85-4896) against defendants DuPont and Dow Chemical Corporation ("Dow") on behalf of themselves and the estates of their dead children for the wrongful deaths of the children caused by the teratogenic effect of chemicals in Imron paint. 1 Plaintiffs voluntarily dismissed Dow when they learned that Eastman Chemical Co. ("Eastman") and Union Carbide Corporation ("Union Carbide"), not Dow, had supplied the constituent components of Imron. At that point, on September 15, 1986, plaintiffs filed an equivalent action in the Circuit Court for Baltimore City, adding Eastman and Union Carbide and the City of Baltimore ("City") as defendants.

On April 13, 1987, the state court found that the wrongful death actions were barred by the 3-year statute of limitations applicable to them, Md.Cts. & Jud.Proc. Sec. 3-904(g), and dismissed them. However, the state court denied similar motions of defendants who were not governmental in nature regarding the survival claims because the allegation of fraudulent concealment, which, if proved, would toll the limitations period created an issue which was a matter for the jury. The state court, however, on the motion of the defendant, dismissed the City on governmental immunity grounds.

On May 5, 1987, the defendants removed the state action to federal court (S-87-1108) where it was consolidated with the pending federal action against DuPont before Frederic N. Smalkin, the district judge. On May 26, 1987, Judge Smalkin adopted the state rulings as the law of the case in the removed action and entered similar orders dismissing the wrongful death actions of plaintiffs in the original action. Therefore, only the survival actions against the defendants remained. 2

On July 28 and 29, 1987, Judge Smalkin denied DuPont's motion for summary judgment for the survival actions on the limitations grounds. On September 30, 1987, Judge Smalkin, however, granted summary judgment in favor of DuPont in the cases of Higgins, Jones and Allen, 671 F.Supp. 1063. Judge Smalkin found on the undisputed evidence that DuPont's warning label was adequate as a matter of law and that plaintiffs' unforeseeable misuse of the product cut off the chain of proximate causation. From this adverse decision plaintiffs appealed.


Plaintiffs brought the actions to recover for the deaths of their children and fetuses who allegedly died from the teratogenic effect of chemicals contained in Imron paint. Each of the husbands had worked for the Baltimore City Fire Department in the same fire house, where they used Imron paint to "touch up" the fire engines. Plaintiffs claimed that the deaths were caused by glycol ether acetates and lead supplied by Dow and contained in Imron paint which was developed, manufactured and distributed by DuPont. DuPont advertised Imron paint for sale through distributors for use by industrial professionals, such as fleet truck and transit systems, body shops, marinas, car dealers and manufacturers of aircraft, fire engines, heavy duty construction equipment, and utility vans. Imron was sold and delivered by DuPont to C & R Paint Supply, Inc. ("C & R"), which in turn, sold and delivered the product to the Key Highway repair yard of the Baltimore City Fire Department, where fire apparatus was regularly painted and repainted. C & R never sold or delivered Imron paint directly to the City firehouses nor did it directly solicit business from the Fire Department through sales representatives. 3 Furthermore, it is undisputed that C & R understood that the City's fire vehicles were repaired and painted only at the Key Highway repair shop. Nothing suggests that C & R even suspected that Imron paint was sent out to the individual fire houses until 1985 when it received an unusual request from the City Fire Department for some empty quart containers.

However, from 1979 to 1985, the City Fire Department's Key Highway facility redistributed quantities of Imron in both marked (i.e., with DuPont's labels affixed) and unmarked one-gallon paint cans, coffee cans, or glass jars to the plaintiffs for their use in touching up fire apparatus in the firehouse. The City did not provide the plaintiffs with separate instructions or warnings as to the use of Imron, or with protective clothes to wear while applying the Imron paint.

Each of the labels affixed to the Imron paint products 4 which C & R sold to the City Fire Department stated in clear lettering on the front of the cans:

FOR INDUSTRIAL USE ONLY by professional, trained personnel. Not for sale to or use by the general public.

This warning was accompanied by instructions on the back of the label which required the use of a supplied-air respirator, eye protection, gloves, protective clothing and adequate ventilation. 5 Furthermore, C & R supplied Material Safety Data Sheets ("MSDS") to the City Fire Department which repeated the safety precautions requiring the use of a respirator, eye protection, gloves, and adequate ventilation. 6 However, none of the information constituting a warning specifically warned of the possible teratogenic effects of the product.


We turn first to the question of whether the district court lacked jurisdiction to enter summary judgment because the state case was improperly removed. On April 13, 1987, the City of Baltimore was dismissed from plaintiffs' action in state court, resulting in complete diversity between plaintiffs and defendants. On May 5, 1987, defendants removed the state court action to federal court pursuant to 28 U.S.C. Sec. 1446(b). 7 Plaintiffs did not object to removal at the time and have only raised an objection subsequent to the district court's adverse rulings on the merits.

Diversity must be established at the time of removal. Even so, a case may nevertheless not be removable depending on whether the non-diverse party is eliminated from the state action by voluntary or involuntary dismissal. See Heniford v. American Motors Sales Corp., 471 F.Supp. 328, 334-35 (D.S.C.1979). If the plaintiff voluntarily dismissed the state action against the non-diverse defendant, creating complete diversity, the state action may be removed because there is no risk that diversity will be destroyed later on. The voluntary act has demonstrated the plaintiff's desire not to pursue the case against the non-diverse party. However, this is not the situation if the non-diverse party has been involuntarily dismissed by order of the state judge. The plaintiff may choose to appeal the dismissal. Although complete diversity may temporarily exist between the parties, suggesting that removal is proper, diversity jurisdiction may ultimately be destroyed if the state appellate court reverses the dismissal of the non-diverse party. Therefore, some cases are not removable despite complete diversity between the parties. Although disagreement exists whether the involuntary/voluntary distinction survived the 1949 amendment to Sec. 1446, the trend appears to retain the distinction. See 14A C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure Sec. 3723, at 317 (1985). Therefore, plaintiffs' state action may have been improperly removed.

Despite this, the Fourth Circuit recently held that so long as jurisdiction is present at the time of judgment, that judgment must stand. Able v. Upjohn Co., 829 F.2d 1330 (4th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1229, 99 L.Ed.2d 429 (1988). In Able, plaintiff sued several defendants, one of whom was non-diverse, in state court. The diverse defendants removed the state court suit pursuant to Sec. 1441(c). 8 Abel objected, and the district court severed his claim against the non-diverse party and sent it back to state court. The other claims against the diverse defendants were retained in the district court. On appeal, the Fourth Circuit noted that removal under Sec. 1441(c) had been improper because Abel's claims against each defendant were not "separate and independent." Id. at 1332-33. However, "interests of finality and judicial...

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