Klein v. Council of Chemical Associations
| Decision Date | 03 April 1984 |
| Docket Number | Civ. A. No. 81-1109. |
| Citation | 587 F. Supp. 213 |
| Parties | Simon KLEIN and Ruth Klein v. COUNCIL OF CHEMICAL ASSOCIATIONS, Chemical Industry Institute of Toxicology, National Association of Printing Ink Manufacturers, Inc., Printing Industries of America, the Dow Chemical Company, Eastman Kodak Company, Minnesota Mining & Manufacturing Company, Martin Marietta Corporation, Polychrome Corporation, Varn Products Company, Incorporated, R.B.P. Chemical Corporation, Ryco-Line Solvent Company, Monarch Color Corporation, Van Son Holland Ink Corporation of America, Liberty Bronze Ink Company, Individually and as Representatives of the Class of Defendants named herein. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Richard A. Sprague, Edward H. Rubenstone, Steve Alexander, Lawrence E. Hirsch, Sprague & Rubenstone, Philadelphia, Pa., for plaintiffs.
Abraham C. Reich, Jerome E. Ornsteen, Fox, Rothschild, O'Brien & Frankel, Philadelphia, Pa., for Chemical Industry Institute of Toxicology.
Sam L. Warshawer, Jr., Venzie, Phillips & Warshawer, Philadelphia, Pa., for Council of Chemical Associations.
Dean F. Murtagh, John F. Kennedy, Jr., German, Gallagher & Murtagh, Philadelphia, Pa., for Dow Chemical Co.
Henry T. Reath, Beatrice O'Donnell, Duane, Morris & Heckscher, Philadelphia, Pa., for Eastman Kodak Co.
Robert L. Hernandez, Boston, Mass., for Liberty Bronze Ink Co.
Jonathan Wheeler, Margolis, Edelstein & Scherlis, Philadelphia, Pa., for Martin-Marietta Corp.
John F. Kent, Deasey, Scanlan & Bender, Ltd., Philadelphia, Pa., for Minnesota Min. & Manufacturing Co.
Theodore H. Lunine, Bennett, Bricklin, Saltzburg & Fullem, Philadelphia, Pa., for Monarch Color Corp.
Steven A. Asher, LaBrum & Doak, Philadelphia, Pa., for National Art Materials Trade Assn.
Edward C. Toole, Jr., Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pa., for National Ass'n of Printing Ink Manufacturers, Inc.
Anthony S. Minisi, Barry M. Klayman, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for Polychrome Corp.
Edward C. Toole, Jr., Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pa., for Printing Industries of America/Graphic Arts Equipment and Supply Dealers Ass'n.
Joseph I. Fineman, Philadelphia, Pa., for R.B.P. Chemical Corp.
Thomas C. DeLorenzo, Coleman & Goggin, Philadelphia, Pa., for Ryco-Line Solvent Co.
Peter P. Liebert, 3rd, Francis P. Burns, III, Liebert, Short, Fitzpatrick & Lavin, Philadelphia, Pa., for Van Son Holland Ink Corp. of America.
Robert M. Britton, Post & Schell, Philadelphia, Pa., for Varn Products Co.
This products liability action was brought by Simon Klein and his wife, Ruth Klein, against eleven manufacturers and suppliers of chemical products used in the printing industry, four trade associations serving the chemical and printing industries and a research institute; they are named defendants individually and as representatives of a class of manufacturers, distributors, and/or suppliers. Jurisdiction was asserted by reason of diversity of citizenship. Plaintiffs alleged that Simon Klein contracted bladder cancer because he was exposed over a fifty-year period to certain carcinogens by "inhaling the fumes, mists, fogs, vapors and dusts of the various commercial chemical products then commonly used in the ... industry." Second Amended Complaint at ¶ 19(a).
Plaintiffs' original complaint was dismissed without prejudice on October 9, 1981 for failure adequately to allege subject matter jurisdiction. Plaintiffs filed a first amended complaint; seven defendants filed motions to dismiss for lack of jurisdiction or failure to state a claim. Plaintiffs filed a second amended complaint to cure the jurisdictional defects of the first amended complaint. By Order of June 30, 1983, the motion of defendant Council of Chemical Associations ("CCA") to dismiss for lack of personal jurisdiction was granted. The motion of defendants National Association of Printing Ink Manufacturers, Inc. ("NAPIM") to dismiss for lack of subject matter jurisdiction and for lack of venue were denied. The motions of defendant Chemical Industry Institute of Toxicology ("CIIT") to dismiss for lack of subject matter jurisdiction and lack of personal jurisdiction were denied; its motion to dismiss for failure to state a claim was taken under advisement. Subsequently, all defendants joined in motions to dismiss the second amended complaint.1 After oral argument, the court held that the second amended complaint failed to state a cause of action. This opinion explains the court's ruling from the Bench and subsequent grant of the motions to dismiss.
It is alleged that Simon Klein was continuously employed in the letterpress and offset lithography industries and exposed to the various commercial chemical products commonly used in these industries for much of his working day during substantially all his adult life. ¶ 10(a). From 1933 to 1942, Klein was a broker in a letterpress business and spent a substantial portion of each workday in the press-room where it is alleged he necessarily inhaled various unidentified commercial chemical products. Then from 1942 to 1946, Klein served as a tank commander with the Army in Europe; nothing is alleged as to his exposure to chemicals during World War II.
From 1946 to 1962, Klein was a broker and then the owner of his own letterpress and offset lithography business. Again, it is alleged that he spent a substantial part of his working day in the enclosed confines of his business where he inhaled various unidentified commercial chemical products commonly used not necessarily in his business but generally in the industry. He sold his own business in 1962 and worked as a printshop contracting agent and nursing home administrator in Florida from 1962-1966. His exposure to chemical products during this period has not been asserted.
Klein returned to Philadelphia in 1966 as a manufacturer of printed ribbons and binder of books; this again subjected him to the inhalation of various unidentified commercial products used by him in these operations until 1967. From 1967 to 1970, Klein was an estimator and expeditor at a lithography company where he spent a significant part of each working day in the enclosed confines of the production plant where he inhaled fumes, mists, fogs, vapors and dust of commercial chemical products commonly used in the industry.
From 1970 to 1971 Klein, a self-employed broker of print jobs, spent a substantial portion of the working day at a printing company; thereafter, he was employed by the printing company for seven years. For the first two years as an outside salesman he spent a substantial portion of his working day in the production plant but after the company relocated to New Jersey he only spent a couple of hours of three days a week in the plant; the rest of his working time he spent in customers' offices. While in the production facilities, he inhaled byproducts of various commercial chemical products, identified only as those commonly used in the letterpress and offset lithography industries. From 1978 to 1979 Klein was a salesman, estimator and expeditor for a printing firm until he was hospitalized for treatment of bladder carcinoma.
Klein's carcinoma is alleged to be a latent occupational disease manifesting itself a substantial time after initial exposure to offending carcinogens that were a substantial factor in the inducement of his bladder carcinoma. The offending carcinogens were alleged to be one or more commercial chemical products (or agents contained as an ingredient of any of the products commonly used in the industries in which Klein was employed) anytime during the time of his employment. Plaintiff contends the carcinoma could have been easily detected in its early stages by routine examination at which time it could have been easily and effectively treated in a less extensive and radical way than necessitated when actually diagnosed in March, 1979. ¶¶ 45, 47. It is further alleged that the letterpress industry commonly used "various commercial chemical products including film developers, fixative agents, roller washes and solvents, fountain solutions, ink dyes, ink thinners, ink fixatives, drying agents and other products currently unknown to plaintiffs." ¶ 21. Therefore, plaintiffs allege on information and belief that among the various unknown commercial chemical products generally described in the complaint were offending carcinogens manufactured, distributed and/or supplied by the named defendants or unnamed members of the defendant class and that Klein's exposure to these carcinogens was reasonably foreseeable and "alone or in synergistic fashion, proximately caused Mr. Klein's bladder carcinoma." ¶ 22.
To continue reading
Request your trial
-
City of Charleston v. Joint Comm'n
...Celotex Corp., 674 F. Supp. 1149, 1157 (E.D. Pa. 1987) (tobacco trade association owed no duty to smoker); Klein v. Council of Chem. Ass'ns, 587 F. Supp. 213, 225 (E.D. Pa. 1984) (trade associations not liable to printing industry worker); Meyers v. Donnatacci, 220 N.J.Super. 73, 531 A.2d 3......
-
Eastwood v. National Bank of Commerce, Altus, Okl.
...agreement and the substance thereof. See, e.g., Hayduk v. Lanna, 775 F.2d 441, 443-45 (1st Cir.1985) and Klein v. Council of Chemical Associations, 587 F.Supp. 213, 226-27 (E.D.Pa.1984). Accordingly, Plaintiffs' common law fraud claim against this Defendant must be dismissed. However, this ......
-
Kronfeld v. First Jersey Nat. Bank
...met. Hayduk v. Lanna, 775 F.2d 441, 443 (1st Cir.1985); Segal v. Gordon, 467 F.2d 602, 607 (2d Cir.1972); Klein v. Council of Chemical Associations, 587 F.Supp. 213, 227 (E.D.Pa.1984). The unlawful object of the conspiracy alleged here is the commission of the fraudulent acts alleged in the......
-
Bockrath v. Aldrich Chemical Co., Inc.
...The record shows, however, plaintiff cannot in good faith assert that all the products injured him (Klein v. Council of Chemical Associations (E.D.Pa.1984) 587 F.Supp. 213, 221), because he alleged he "was often unaware of the identity of the chemicals and chemical products " and admitted i......
-
Suing the Certifiers – A Dangerous Undertaking
...sue industry groups into silence over their view of product risks barred by First Amendment); Klein v. Council of Chemical Associations, 587 F. Supp. 213, 223-24 (E.D. Pa. 1984) (dismissing action attacking “research” conducted by industry group). But this is worse. Standard setting organiz......