Kerin v. Titeflex Corp., 14–1130.
| Decision Date | 04 November 2014 |
| Docket Number | No. 14–1130.,14–1130. |
| Citation | 770 F.3d 978 |
| Parties | Tim KERIN, on behalf of himself and all others similarly situated, Plaintiff, Appellant, v. TITEFLEX CORPORATION t/a Gastite, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Kevin T. Peters, with whom Erika Todd and Arrowood Peters LLP were on brief, for appellant.
John G. Papianou, with whom Charles B. Casper, Montgomery, McCracken, Walker & Rhoads, LLP, Jeffrey E. Poindexter, Jodi K. Miller, Bulkley Richardson and Gelinas, LLP were on brief, for appellee.
Before LYNCH, Chief Judge, RIPPLE* and SELYA, Circuit Judges.
This products liability case concerns the question of standing based on a theory of enhanced risk of future injury. Tim Kerin appeals the dismissal of his case against Titeflex Corporation t/a Gastite (“Titeflex”) for an alleged product defect in Gastite corrugated stainless steel tubing (“CSST”), which causes risks of CSST being vulnerable to failure after lightning strikes. The District Court of Massachusetts dismissed for lack of standing because Kerin's injury was too speculative. Kerin v. Titeflex Corp., No. 13–cv–30141–MAP, 2014 WL 67239, at *1–2 (D.Mass. Jan. 7, 2014).
We do not hold that increased risk of harm from product vulnerability to lightning strikes can never give rise to standing. But in this case, Kerin fails to allege either facts sufficient to assess the probability of future injury or instances of actual damage where the cause is clear, and concedes that CSST meets applicable regulatory standards specifically addressing the risk.
We affirm dismissal based on lack of standing.
Kerin owns a house in Florida which has Gastite CSST installed to provide gas for his outdoor firepit. His complaint purported to bring a class action against Titeflex, the manufacturer of Gastite, for an alleged product defect. He brought the claim under diversity jurisdiction in Massachusetts, where Titeflex is located.
Introduced in the 1980s, CSST is used in home and commercial structures throughout the country. It has since been discovered that CSST may fail when exposed to electrical insult, such as that caused by lightning. See Nat'l Fire Prot. Ass'n, NFPA 54 FAQs ¶ 6 [hereinafter NFPA 54 FAQs], available at https:// www.nfpa.org/Assets/files/AboutTheCodes/54/54_FAQs.pdf (last visited Oct. 31, 2014) (discussing a mitigation measure). Both direct and indirect lightning strikes can cause an electrical arc that can puncture CSST, igniting the natural gas within. Kerin alleges that “CSST's significant risks are well-established,” and that industry “experts” recommend “several possible remedies, including complete removal.” Kerin also alleges that, “[a]s of August 2011, 141 fires involving lightning and CSST have been reported throughout the United States.” Titeflex has allegedly “been aware of the risks that its product creates.... since at least 2004,” and developed a new product, FlashShield, in 2012 to address risks associated with lightning. But despite these “known risks,” Gastite CSST continues to meet code requirements and is still used in buildings throughout the country. See, e.g., National Fuel Gas Code, ANSI Z223.1–2015 (NFPA 54–2015) § 5.6.3.4 (2015 ed.); National Fuel Gas Code, ANSI Z223.1–2012 (NFPA 54–2012) § 5.6.3.4 (2012 ed.); Mass. Bd. of State Exam'rs of Plumbers & Gas Fitters, Board Policy: Corrugated Stainless Steel Tubing (CSST) (Feb. 4, 2009) [hereinafter Mass. Board Policy], available at http:// www.mass.gov/ocabr/government/oca-agencies/dpl-lp/regarding-corrugated-stainless-steel-tubing-csst.html (last visited Oct. 31, 2014).
Kerin's July 2013 complaint asserted four causes of action under Massachusetts law, each based on allegations of Gastite CSST's vulnerability to lightning strikes: “strict liability for design and manufacturing defects, negligence in design[ing] and failing to test the product, negligence in failure to warn, and strict liability in failure to warn.” Kerin does not allege that this vulnerability of his home's CSST to lightning strikes has manifested in any actual harm. Rather, he seeks damages “that may be measured as his overpayment or as the cost of remedying the safety issue.”
The district court dismissed for lack of standing, stating that “it is obvious that Plaintiff cannot clear the ‘injury in fact’ hurdle.” Kerin, 2014 WL 67239, at *1. The court reasoned that the “strand of conjecture ... is simply too attenuated,” requiring both a lightning strike and one that effects a puncture in the CSST. Id. The court also concluded that, even if Kerin had standing, Kerin failed to state a claim because he failed to allege “an applicable standard against which [Titeflex's] due care could be measured” as required to claim economic injury from a defective product under Massachusetts law. Id. (citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 888 N.E.2d 879, 888 (2008) ).
We do not adopt the district court's reasoning to the extent it relies on the proposition that lightning strikes present a textbook example of speculative risk and remote possibilities which are simply insufficient for injury in fact. Cf. Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1234 (D.C.Cir.1996) (). Although “[t]he capriciousness of a lightning strike is the stuff of folklore,” Kerin, 2014 WL 67239, at *1, the law of probabilistic standing is evolving,1 and it is conceivable that product vulnerability to lightning might, in some circumstances, constitute injury. But where, as here, the alleged present harm depends solely on the risk of some future injury, we must proceed cautiously. See Ctr. for Law & Educ. v. Dep't of Educ., 396 F.3d 1152, 1161 (D.C.Cir.2005) (Sentelle, J.) (). Because Kerin fails to allege risk sufficient to find injury, we affirm the district court's dismissal.
The existence of standing is a legal question, which we review de novo.See Katz v. Pershing, LLC, 672 F.3d 64, 70 (1st Cir.2012). When reviewing a pre-discovery grant of a motion to dismiss for lack of standing, “we accept as true all well-pleaded fact[s] ... and indulge all reasonable inferences” in the plaintiff's favor. See id. at 70–71 (quoting Deniz v. Mun'y of Guaynabo, 285 F.3d 142, 144 (1st Cir.2002) ) (internal quotation marks omitted). We may affirm dismissal “on any ground made manifest by the record.” See id. at 71 (quoting Román–Cancel v. United States, 613 F.3d 37, 41 (1st Cir.2010) ) (internal quotation marks omitted). Because no class was certified below, our review is limited to whether Kerin himself has standing. See id.
Our judicial power is limited by Article III of the Constitution to actual cases and controversies. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). “One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue.” See Blum v. Holder, 744 F.3d 790, 795 (1st Cir.2014) (quoting Clapper v. Amnesty Int'l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013) ) (internal quotation marks omitted). “This requirement ‘is founded in concern about the proper—and properly limited—role of the courts in a democratic society.’ ” Id. at 795–96 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 492–93, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ).
To satisfy this standing requirement, a plaintiff must sufficiently plead three elements: injury in fact, traceability, and redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An “injury in fact” is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not conjectural or hypothetical.’ ” See id. at 560, 112 S.Ct. 2130 (internal citations omitted) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ). Imminence, which plays a central role in cases of probabilistic standing, “is concededly a somewhat elastic concept.” See Clapper, 133 S.Ct. at 1147 (quoting Lujan, 504 U.S. at 565 n. 2, 112 S.Ct. 2130 ) (internal quotation marks omitted). “[I]ts purpose ... is to ensure that the alleged injury is not too speculative for Article III purposes.” See id. (quoting Lujan, 504 U.S. at 565 n. 2, 112 S.Ct. 2130 ) (internal quotation marks omitted).
Cases claiming standing based on risk, such as this, potentially involve two injuries: (1) a possible future injury that may or may not happen (i.e., the harm threatened); and (2) a present injury that is the cost or inconvenience created by the increased risk of the first, future injury (e.g., the cost of mitigation). See Blum, 744 F.3d at 796 (quoting Mangual v. Rotger–Sabat, 317 F.3d 45, 56–57 (1st Cir.2003) ) (identifying two injuries in context of First Amendment challenge: the present injury, a chilling effect, caused by the threat of future injury, criminal prosecution); see also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 155, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010) (). These cases require caution, because although one of the alleged injuries is present, satisfying imminence, that injury may still be speculative. This is because the alleged present injury depends on the plaintiff's response to an increased risk, and whether his or her response constitutes a reaction for which compensation is owed or constitutes a mere attempt to “manufacture standing.” Compare Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 184–85, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (...
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