Kardas v. Union Carbide Corp., 2004 NY Slip Op 50163(U) (NY 3/25/2004)

• Decision Date: 25 March 2004
• Docket Number: 9011/00.
• Parties: AMBER-ANN LOUISE KARDAS, et al., (ASHLEY THIBAULT), Plaintiffs, v. UNION CARBIDE CORPORATION, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

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2004 NY Slip Op 50163(U)

AMBER-ANN LOUISE KARDAS, et al., (ASHLEY THIBAULT), Plaintiffs, v. UNION CARBIDE CORPORATION, et al., Defendants.

9011/00.

Supreme Court of the State of New York, Westchester County.

Decided March 25, 2004.

Steven J. Phillips, Esq., Levy Phillips & Konigsberg, LLP, Attorneys for Plaintiffs.

Thomas E. Reidy, Esq., Ward Norris Heller & Reidy Attorneys for Moving Defendants.

Shipley Company LLC, Union Carbide Corporation, KTI Chemicals Inc., CNA Holdings, Inc. f/k/a Hoechst Celanese Corporation and G.J., Chemical Company, Rochester, New York, Michael J. Templeton, Esq., Jones Day, Attorneys for Moving Defendant.

International Business Machines Corporation, Floor, New York, New York.

JOAN B. LEFKOWITZ, J.

In Ruffing (Pfleging) v. Union Carbide Corp. (1 A.D.3d 339 [2d Dept. 2003] [hereinafter "Pfleging"]), in another of the cases in this complex toxic tort litigation, the Appellate Division, Second Department, held that an infant was not entitled to serve an amended complaint because "[it] fail[ed] to state a cognizable cause of action against [her father's employer] under either common-law negligence or strict products liability", where her proposed amended complaint:

"... essentially allege[d] that [her father] carried out of the workplace and surrounding area hazardous substances on his clothing and within his body to which his wife and daughter in utero were exposed". (Id., 1 A.D.3d, at 341).

Relying upon this decision, the remaining defendants sued by Ashley Thibault, an infant plaintiff (hereinafter "plaintiff") who asserts causes of action similar to those involved in Pfleging, move for the dismissal of each of those claims for failure to state a cause of action, or alternatively, for summary judgment dismissing those claims.¹ Because this Court concludes that under controlling conflicts of law principles the law to be applied on these motions with respect to plaintiff's claims of common-law negligence, strict products liability and assumption of duty is that of the State of Vermont, and not that of New York, those causes of action survive defendants' challenges.²

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff's father, Jon Thibault, was employed by defendant International Business Machines Corporation (IBM) at its Essex Junction facility in Vermont from 1984 through the time of her birth in 1987. During that time Mr. Thibault worked in a "clean room", i.e., a part of the facility where semiconductors were manufactured. The manufacturing process required Mr. Thibault to use and be exposed to numerous chemicals, many of which have been found to be actually or potentially harmful to humans (the causation chemicals). Some of these chemicals were manufactured by IBM for its own use, while others were manufactured and then sold to IBM by several other companies, including defendants Shipley Company LLC, Union Carbide Corporation, KTI Chemicals Inc., CNA Holdings, Inc. f/k/a Hoechst Celanese Corporation, and G.J. Chemical Company (collectively hereinafter "the Supplier Defendants").³

During plaintiff's gestation period, her father was exposed to the causation chemicals on a daily basis by inhaling them and through contact with his skin and clothing. His wife was then exposed to them through her washing of her husband's clothing and by engaging in sexual relations with him, which, according to plaintiff, "caused Mr. Thibault's toxin-contaminated sperm and semen to be introduced repeatedly into the body of [plaintiff's] mother, affecting the tissue in which [plaintiff] was implanted and attacking [plaintiff] in her embryonic and foetal state" (Pl. Mem., p.3).

Upon plaintiff's birth on October 6, 1987 she was diagnosed as suffering from numerous serious birth defects which, in sum, have left her with "profound brain damage", requiring constant care for the remainder of her life.⁴ Many years later she joined approximately two hundred other IBM employees and their children in suing the Supplier Defendants and IBM (collectively hereinafter "defendants"), claiming a variety of injuries allegedly caused by exposure to the causation chemicals.⁵

Among the plaintiffs who brought suit was Alyssa Pfleging (Ms. Pfleging), whose claims were included in the complaint filed under the caption Ruffing et al. v. Union Carbide et al. (hereinafter "the Ruffing complaint"). In that complaint Ms. Pfleging brought causes of action sounding in negligence and strict products liability, based upon allegations of, inter alia, defective design, manufacture and testing of the causation chemicals, failure to warn, improper training, and inadequate safety equipment and ventilation. Ms. Pfleging's lawsuit was founded upon the central claim that she was injured as a result of exposure to certain of the causation chemicals while she was in utero, and that the manner of her exposure was her mother's laundering of her father's clothing and her parents' sexual relations during the period of Ms. Pfleging's gestation (hereinafter "male-mediated off-site exposure").

On July 12, 2000 Mr. Thibault commenced this lawsuit, individually and on behalf of his daughter, along with other plaintiffs, by filing a complaint under the caption Kardas et al. v. Union Carbide et al. (the Kardas complaint). In the Kardas complaint, he and plaintiff asserted causes of action against IBM and the Supplier Defendants for negligence, strict products liability breach of warranty, ultrahazardous activity, fraudulent concealment and misrepresentation, and enterprise liability. Like Ms. Pfleging, plaintiff at bar contends that her injuries were the result of male-mediated off-site exposure to the causation chemicals.

In 1998 dismissal motions were filed against the Ruffing complaint and other complaints brought by other plaintiffs in this litigation. By decision and order entered October 19, 1998 (the 1998 Order), Justice Francis A. Nicolai dismissed the ultrahazardous activity causes of action as against the Supplier Defendants and the fraudulent concealment and misrepresentation claims against all defendants. Although Justice Nicolai denied the motion to dismiss the enterprise liability claims as premature, and observed that such a cause of action does not exist under New York law, he recognized that the suing plaintiffs would be entitled to recover on a "concerted action liability theory" if they "can show that the defendants agreed to commit a tortuous [sic] act which resulted in [plaintiffs'] injuries" (Reidy Affid., Exh.D, p.16).

Subsequently, the parties executed a series of stipulations which applied the 1998 Order to all pending complaints, including the later-filed Kardas complaint. As a consequence, the only causes of action set forth in the Kardas complaint that apparently remained were those sounding in negligence, strict products liability, breach of warranty, ultrahazardous activity and concerted action. However, in a bill of particulars served by plaintiff at bar on August 15, 2002 (the Preliminary BOP), plaintiff made several allegations against IBM concerning internal policies and practices that it adopted which were purportedly aimed at the protection of its employees from harm resulting from exposure to certain of the causation chemicals.

During the course of the litigation, the claims of both Ms. Pfleging and her father were dismissed as time-barred. In an effort to revive her own claims, Ms. Pfleging moved to amend her complaint against IBM to rely upon the more favorable accrual of action provisions found in Section 9658 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 USC §9601 et seq. [hereinafter "CERCLA"]).⁶ In a decision and order entered on August 13, 2002 (the Pfleging motion order), Justice John P. DiBlasi denied that motion based upon his conclusion that CERCLA did not apply to the male-mediated off-site exposures which underlay Ms. Pfleging's claims.

Ms. Pfleging appealed the Pfleging motion order. Although the central issues raised on that appeal related to the application of CERCLA and the timeliness of Ms. Pfleging's lawsuit, in IBM's opposition brief and Ms. Pfleging's reply brief the parties addressed, to some extent, the sufficiency of her claims. Among the arguments presented by Ms. Pfleging was that she had a valid negligence cause of action based upon her allegation that by virtue of IBM's policies and practices related to the use of certain of the causation chemicals, that defendant had assumed a duty toward her which it subsequently breached.

The Appellate Division did not reach the CERCLA issue in deciding Ms. Pfleging's appeal. Instead, as noted above, in its November 3, 2003 decision it determined that even if CERCLA applied, her proposed amended complaint 'fail[ed] to state a cognizable cause of action against IBM under either common-law negligence or strict products liability" (Ruffing [Pfleging] v. Union Carbide Corp., supra, 1 A.D.3d, at 341). In doing so, it cited its decision in Widera v. Ettco Wire & Cable Corp. (204 A.D.2d 306,307 [2d Dept. 1994], lv. denied 85 N.Y.2d 804 [1995]), a case in which that same court held that an infant failed to state a negligence cause of action where her claim was that she was injured in utero by exposure to chemicals which resulted from her then-pregnant mother's laundering of her father's work clothes.

Following the decision in Pfleging, this Court was presented with a motion by certain of the defendants who sought dismissal of plaintiff's claims for preconception tort. In its decision and order entered January 12, 2004 (the January 2004 Order), this Court ruled that Vermont law governed in this case based upon its consideration of "the grouping of contacts and interest analysis approach to choice of law problems in personal injury cases" (Kardas v. Union Carbide, NYLJ 2/13/04, p.20, col.1 [Sup. Ct. Westchester Co.]). Because Vermont law was "silent on the question of recovery for...