In re Asbestos Litigation
| Decision Date | 13 July 1987 |
| Docket Number | 87-0764-A4,87-0564-A2,87-0830-A6 and 87-0869-A7.,Civ. No. 87-0300-A1,87-0632-A3,87-0765-A5 |
| Parties | In re ASBESTOS LITIGATION. Fred HAMMER, Plaintiff, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants. Jacob WEISSMAN and Marguerite Weissman, his wife, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants. Mollie FOW, as Personal Representative of the Estate of Samuel H. Fow, deceased, Plaintiff, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants. Loyal FLYNN and Margaret Flynn, his wife, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants. Enos MOBLEY and Marjorie Mobley, his wife, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants. Richard ALDRICH and Carole Aldrich, his wife, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants. Leonard WALTER and Rogene Walter, his wife, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Susan J. Cole, Blaire & Cole, Coral Gables, Fla., for General Medical Counsel.
Brian S. Keif, Karl Santone, Miami, Fla., for defendant, Combustion Engineering.
Diane Sommerer, Haddad, Josephs & Jack, Coral Gables, Fla., for defendant, Raymark.
Dan B. Guernsey, Welbaum, Zook, Jones & Williams, Miami, Fla., for Crown Cork & Seal Co.
Tracy Howard, Harold Knecht, Jr., Miami, Fla., for defendant, Nicolet, Inc.
Miles A. McGrane, III, Talburt, Kubicki, et al., Miami, Fla., for defendant, W.R. Grace.
Roger Welcher, Miami, Fla., for defendant, U.S. Mineral.
David M. Lipman, Lipman & Weisberg, Miami, Fla., and Thomas H. Hart, III, Blatt & Fales, Barnwell, S.C., for plaintiffs Fred Hammer, et al.
Robin T. Symons, Preddy, Kutner, Hardy, Rubinoff, Brown & Thompson, Miami, Fla., for Garlock, Inc.
David L. Sullivan, Usich & Sullivan, Miami, Fla., for Foster Wheeler Corp.
William M. Douberley, Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A., Miami, Fla., for Goodall Rubber Co., Inc.
This matter is before the Court on various motions filed by the Defendants in the above-styled cases consolidated for pre-trial proceedings and discovery only.
Several of the Defendants have filed various motions to dismiss and/or strike as well as motions for a more definite statement. This Order shall apply to the following motions: Defendant W.R. GRACE & CO.'s Motions to Dismiss the Complaints on the basis of insufficient pleading as to the counts of negligence, strict liability, breach of implied warranty and conspiracy, Motions for a More Definite Statement and Motions to Strike the claim for punitive damages and the allegations of fear of contracting cancer in cases 87-0300-A1, 87-0564-A2, 87-0632-A3, 87-0764-A4, 87-0765-A5, 87-0830-A6; Defendant GARLOCK, INC.'s Motions to Dismiss and to Strike on the same bases in cases 87-0564-A2, 87-0632-A3, 87-0764-A4, 87-0765-A5, 87-0830-A6; Defendant, GOODALL RUBBER COMPANY, INC.'s Motions to Dismiss as to the counts of negligence, strict liability, conspiracy, breach of implied warranty, and punitive damages and alternative Motions for More Definite Statement in cases 87-0564-A2, 87-0632-A3, 87-0764-A4, 87-0765-A5; Defendant UNITED STATES MINERAL PRODUCTS COMPANY's Motions to Dismiss the Complaints and Motions for More Definite Statement as to the counts of negligence, strict liability, conspiracy, breach of implied warranty, lack of personal jurisdiction and insufficient service of process and Motions to Strike the claim for punitive damages and the allegations of fear of contracting cancer in cases 87-0300-A1 and 87-0830-A6.
As a threshold consideration in ruling on a motion to dismiss for failure to state a cause of action, the Court is aware that it is strictly confined in its consideration to the allegations found within the four corners of the complaint. Copeland v. Celotex Corp., 447 So.2d 908 (Fla.Dist.Ct.App. 1984). Additionally, it is beyond peradventure that a complaint should not be dismissed for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) unless it appears beyond doubt that the plaintiff under no set of circumstances can prove a set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41 (1957).
For the purpose of determining the sufficiency of the claim, all facts stated in the complaint are accepted as true and the likelihood of recovery is irrelevant. As has often been said, the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Further, a motion to dismiss is not a substitute for a motion for summary judgment. All allegations in the complaint must be accepted as true and a court is not free to speculate as to what indeed may be true or ultimately proven. Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).
The Defendants' attack upon the negligence and strict liability counts are bottomed upon the proposition that the complaint does not allege or specify how the Plaintiffs purchased, used or otherwise came into contact with the Defendants' products. Consistent with requirements of Rule 8, Federal Rules of Civil Procedure, Plaintiffs have alleged proper claims for negligence and strict liability. The Plaintiffs have alleged in each complaint that the Defendants either mined, manufactured, distributed or produced asbestos-containing products, that the products were in a defective condition, that the Defendants either knew or should have known that the asbestos products were harmful to the Plaintiffs and that the Defendants failed to adequately warn Plaintiffs of the dangers in the products from which the Plaintiffs have suffered damages.
Under current controlling Florida substantive law the Defendants' concerns regarding the failure to identify the alleged defective product, the times, dates and places of exposure are without merit under Copeland v. Celotex Corp., 447 So.2d 908 (Fla.Dist.Ct.App.1984). To require a plaintiff who is claiming injury over many years of exposure to asbestos to identify with more specificity facts at the pleading stage would cause an unrealistic and "insurmountable burden" and is not required.
The Defendants assert that the Plaintiffs have failed to state a claim upon which relief can be granted for breach of implied warranty in that the complaint fails to allege the privity of contract required by Florida substantive law. They also assert that Plaintiffs gave the Defendants no "notice" of the alleged breach within a reasonable time after discovery as is required by Fla.Stat. § 672.607(3)(a) (1985).
Upon an examination of the allegations of the implied warranty claims, it appears that Plaintiffs have set forth enough facts which, if proven, would entitle them to relief under Florida's Uniform Commercial Code. There are sufficient allegations that Plaintiffs were foreseeable users of the product, and at the time of the sale and/or distribution of product Defendants possessed superior knowledge as to the dangerous propensities of the products, that Plaintiffs relied on Defendants' skill, superior knowledge and judgment to furnish a safe product and the defective product caused injury to the Plaintiffs. See Fla. Stat. § 672.318 (1985).
Plaintiffs have also alleged sufficient facts to state a claim for implied warranty under Florida common law. Contrary to Defendants' contention that there is a requirement of privity of contract required in implied warranty actions, it appears by the Eleventh Circuit's recent review of Florida cases that it is "unresolved as to whether there continues to be a common law implied warranty cause of action against a product manufacturer by a foreseeable user of that product in the absence of privity." Kramer v. Piper Aircraft Corporation, 801 F.2d 1279, 1282 (11th Cir.1986).*
Regarding the absence of notice to the Defendants as required by Fla.Stat. § 672.607(3)(a), the Florida courts have uniformly held that the notice requirements of § 672.607(3)(a) need not be complied with if Plaintiffs are merely warranty beneficiaries rather than buyers. Taylor v. American Honda Motor Company, Inc., 555 F.Supp. 59 (M.D.Fla.1982).
Defendants' position is that the conspiracy claims of the Plaintiffs should be dismissed for the reason that the complaint lacks detailed facts sufficient to apprise the multiple Defendants of the facts which are the basis for the conspiracy. Defendants cite the general proposition that in order to properly plead an alleged conspiracy, allegations must be more definitive and are held to a stricter standard than other claims for relief. It is true that mere conclusory notice pleading is insufficient in that a defendant must be specifically informed of the nature of the conspiracy which is alleged, and it is not enough to merely aver that a conspiracy existed. See Fullman v. Graddick, 739 F.2d 553 (11th Cir.1984). Upon an examination of the civil conspiracy counts, however, it appears that Plaintiffs have met this higher standard and have alleged facts which, if true, state a cause of action for civil conspiracy based upon the independent tort of fraudulent misrepresentation and concealment regarding the dangerous nature of the product, and for misrepresenting and concealing the extent of injuries that might be caused by the defective products.
The Defendants seek to dismiss the actions on the basis that Plaintiffs have not pled ultimate facts nor shown any connexity between Defendants' products and the alleged injuries sufficient to support their contention that this Court has jurisdiction over the Defendants. In...
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