Hurd v. Monsanto Co.

• Decision Date: 25 September 1995
• Docket Number: No. IP 94-983 C B/S.,IP 94-983 C B/S.
• Citation: 908 F. Supp. 604
• Parties: Alta L.P. HURD, and Clifford O. Rawley, Individually and as Representative Plaintiffs for a Class of Those Similarly Situated, Plaintiffs, v. MONSANTO COMPANY, a Delaware Corporation, and Westinghouse Electric Corporation, a Pennsylvania Corporation, Defendants.
• Court: U.S. District Court — Southern District of Indiana

908 F. Supp. 604

Alta L.P. HURD, and Clifford O. Rawley, Individually and as Representative Plaintiffs for a Class of Those Similarly Situated, Plaintiffs, v. MONSANTO COMPANY, a Delaware Corporation, and Westinghouse Electric Corporation, a Pennsylvania Corporation, Defendants.

No. IP 94-983 C B/S.

United States District Court, S.D. Indiana, Indianapolis Division.

September 25, 1995.

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David S. McCrea, McCrea & McCrea, Bloomington, IN, Michael Warshauer, Burge & Wettermark, Atlanta, GA, Michael Gallagher, Fisher Gallagher & Lewis, Houston, TX, for plaintiffs.

Michael R. Fruehwald, Barnes & Thornburg, Indianapolis, IN, for Monsanto Company.

Joseph B. Carney, Baker & Daniels, Indianapolis, IN, Arvin Maskin, Weil Gotshal & Manges, New York City, for Westinghouse Electric Corp.

ENTRY

BARKER, Chief Judge.

This matter is before the Court on defendant Westinghouse Electric Corporation's ("Westinghouse") motion to dismiss Counts 6 through 13 of the Second Amended Complaint and defendant Monsanto Company's ("Monsanto") motion to dismiss Count 3 of the Second Amended Complaint. For the reasons set forth below, Westinghouse's motion is granted; Monsanto's motion is denied.

I. FACTUAL BACKGROUND.

For purposes of defendants' motions to dismiss, the facts alleged in the Complaint are undisputed. This is an action brought by Alta Hurd and Clifford Rawley. Both Hurd and Rawley are long-time employees of Westinghouse Electric Corporation ("Westinghouse"), having worked at Westinghouse's Bloomington, Indiana, manufacturing facility since August, 1965, and July, 1967, respectively. Westinghouse owned and operated the Bloomington facility from 1957 through January 1, 1990. During that period, the facility manufactured, among other things, electrical power capacitors, lightning arrestors, fuse cutouts and reclosers. Between 1958 and 1977, Westinghouse used a polychlorinated biphenyl dielectric fluid ("PCBs") called Inerteen as a component part of its electrical power capacitors. The sole manufacturer of PCBs in the United States during that time was Monsanto.

PCBs are made through a process whereby chlorine is passed through heated liquid biphenyl in the presence of iron filings. PCBs, and their by-products polychlorinated dibenzofurans ("PCDFs") and polychlorinated dibenzodixons ("PCDDs"), are human carcinogens. In response to several studies documenting the potential environmental and human health risks attendant to their use, the federal government banned the manufacture and use of PCBs in the mid 1970's.

During the period that PCB fluids were used in the manufacture of electrical capacitors at the Bloomington plant, both Monsanto and Westinghouse "were aware that PCBs were unreasonably dangerous and likely to cause injury" to persons exposed to them. (Second Amended Complaint, ¶ 10). Despite this knowledge, however, defendants either intentionally withheld information concerning the hazards associated with exposure to PCBs, or affirmatively misrepresented their safety.

Hurd and Rawley were exposed to PCB fluids and fumes from the time they began working for Westinghouse until 1977, the year Westinghouse discontinued their use. Hurd suffers joint pain, skin rashes, high cholesterol, nail fungus, loss of concentration, numbness, sinus and colon problems and endometriosis, all of which she believes were caused by exposure to PCBs. She is also fearful that her health will worsen over time as a result of that exposure. Similarly, Rawley maintains that his joint pain, headaches, sinus and stomach problems are the result of PCBs exposure, and he fears that he may ultimately develop more serious health problems such as cancer.

Plaintiffs originally filed this suit as a class action on June 23, 1994. On July 5, 1994, Plaintiffs amended their complaint as a matter of right pursuant to Rule 15. On August 15, 1994, Westinghouse moved to dismiss. Prior to a ruling on that motion, however, the Court granted Plaintiffs leave to amend their complaint a second time. On October 20, 1994, plaintiffs filed the Second Amended Complaint on their own behalf, and on behalf of "the more than 3,500 workers exposed to PCBs and related toxic compounds at Westinghouse's Bloomington, Indiana plant from 1958 to 1977 when PCB capacitors were manufactured." (Second Amended Complaint, ¶ 7).¹ In the Second Amended Complaint, plaintiffs allege fraud, conversion, breach of contract and breach of the collective bargaining agreement, battery, intentional harm and punitive damages claims against Westinghouse. Similarly, Monsanto is being sued for emotional distress, fraud, battery, strict liability and punitive damages. Both plaintiffs seek compensatory damages and costs associated with future medical monitoring. Defendants filed the instant motions on November 11, 1994.

II. STANDARD OF REVIEW.

For purposes of a motion to dismiss, all the allegations in the complaint "are assumed to be true." Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1082, 31 L.Ed.2d 263 (1972); Midwest Grinding Company v. Spitz, 976 F.2d 1016, 1019 (7th Cir.1992). A plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir.1985). The Court will not dismiss the claim "unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claim which would entitle them to relief." Corcoran v. Chicago Park District, 875 F.2d 609, 611 (7th Cir.1989) quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

III. WESTINGHOUSE'S MOTION TO DISMISS.

Plaintiffs have alleged several claims against Westinghouse, including fraud, conversion, common law breach of contract, breach of the collective bargaining agreement, battery, intentional harm and punitive damages. In the instant motion, Westinghouse asserts (1) that the exclusive remedy provisions of the Indiana Workmen's Compensation Act ("the Act" or "WCA") and Occupational Disease Act ("ODA") bar each of these claims, and (2) that even if some claims survive, plaintiffs have failed to state claims for which relief can be granted for reasons specific to each claim. Each argument will be addressed in turn.

A. Exclusivity Provisions of the Indiana Workmen's Compensation Act and Occupational Disease Act.

In Indiana, two related statutory schemes compensate individuals who suffer work-related harm. First, the WCA provides compensation for personal injury or death by accident arising out of and in the course of employment. I.C. § 22-3-1-1 et seq. (Burns 1992) The second, the ODA, provides compensation for disablement or death by an occupational disease arising out of and in the course of employment. I.C. § 22-3-7-2 (Burns 1992). Although related, the statutes are distinct: whereas the former addresses "personal injuries or death" caused "by accident," § 22-3-2-2, the latter addresses "disablement or death" caused "by an occupational disease." § 22-3-7-2; see generally Buford v. American Telephone & Telegraph, 881 F.2d 432, 433-34 (7th Cir. 1989).

Both remedial schemes employ exclusivity provisions, which is to say that the compensation remedy afforded under either act is exclusive of all other remedies for claims falling within the purview of that act. See I.C. § 22-3-2-6; I.C. § 22-3-7-6. As this Court noted in Baker v. Westinghouse, 830 F.Supp. 1161, 1166 (S.D.Ind.1993), when enacting the WCA and ODA,

the legislature made a conscientious choice to provide individuals who are injured in the course of their employment with compensation which, though probably less than what they would receive if they prevailed in litigation, is guaranteed. In return for this payment, employers are relieved of burdensome litigation because the remedy under both the Act and the ODA is exclusive.

See also Evans v. Yankeetown Dock Corp., 491 N.E.2d 969, 971 (Ind.1986); Greene v. Westinghouse Electric Corp., 573 N.E.2d 452, 453-54 (Ind.App.1991). Both statutory schemes thus represent a "quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance." 2 Larson's Workmen's Compensation, § 65.10 (1995), quoted in Evans, 491 N.E.2d at 971.

(1). Applicability of the ODA

A claim falls within the purview of the ODA's exclusive remedy provisions if the employee has suffered (1) an occupational disease and (2) disablement or death. I.C. § 22-3-7-6; House v. D.P.D., Inc., 519 N.E.2d 1274, 1275 (Ind.App.1988).²

By definition, an occupational disease is a disease "arising out of and in the course of employment." I.C. XX-X-X-XX(a). As the Indiana Supreme Court recently made clear, the occupational disease requirement "is designed to reinforce and explain ... that there be a causal connection between any disablement or death suffered and the employment." Baker v. Westinghouse Electric Corp., 637 N.E.2d 1271, 1277 (Ind. 1994). "This causation requirement exists independent of the circumstances by which any given pathogen came to be present in the workplace, including the fact that it was intentionally introduced." Id. Accordingly,

where an employee's disease was in fact caused by exposure to the hazards actually posed by a given employment situation, this requirement has been satisfied. This is so even where the employer knows to a certainty that disease will eventually result from a hazard....

Id. (citations omitted); see also Buford, 881 F.2d at 434-36.

The "disablement" requirement refers to an employee's loss of wage-earning ability. See Spaulding v. Int'l Bakers Services, 550 N.E.2d 307, 308-310 (Ind.1990). The ODA defines disablement to mean "the event of becoming disabled from earning full wages at the work in which the employee was engaged when last exposed to the hazards of the occupational disease by the employer from whom he claims compensation or equal wages in...