Martinez v. E.I. Dupont De Nemours & Co.

• Decision Date: 05 December 2012
• Docket Number: C.A. No. N10C–04–209–ASB.
• Citation: 82 A.3d 1
• Parties: Maria Elena MARTINEZ, Individually and as Personal Representative of the Estate of Santos Roque Rocha, Plaintiff, v. E.I. DuPONT DE NEMOURS AND COMPANY, INC., Defendant.
• Court: Delaware Superior Court

82 A.3d 1

Maria Elena MARTINEZ, Individually and as Personal Representative of the Estate of Santos Roque Rocha, Plaintiff,

v.E.I. DuPONT DE NEMOURS AND COMPANY, INC., Defendant.

C.A. No. N10C–04–209–ASB.

Superior Court of Delaware,

New Castle County.

Submitted: Oct. 1, 2012.

Decided: Dec. 5, 2012.

Upon Defendant DuPont's Motion to Dismiss the Complaint—GRANTED

Thomas C. Crumplar, Esquire, and Robert Jacobs, Esquire, Jacobs & Crumplar, P.A., Wilmington, Delaware, Attorneys for the Plaintiff.

John C. Phillips, Esquire, and David A. Bilson, Esquire, Phillips, Goldman & Spence, P.A., Wilmington, Delaware, Attorneys for the Defendant.

ABLEMAN, Judge.

I. Introduction

This case is one in a series of approximately twenty-five cases filed against defendant E.I. DuPont de Nemours and Company, Inc. (“DuPont”) by Argentine nationals who allege that they were exposed to asbestos while working in textile plants located in Berazategui, Argentina and Mercedes, Argentina. At the time of the alleged exposures, which began in the early 1960's, the plants were owned by DuPont Argentina Sociedad Anomina (“DASA”). DASA, now known as DASRL, has its principal place of business in Argentina, and is a great-great grand-subsidiary of DuPont.¹

Multiple layers of ownership separate DASRL from DuPont. The majority owner of DASRL is DuPont de Nemours Investments, a wholly-owned subsidiary of DuPont Poland B.V., which, in turn, is a wholly-owned subsidiary of DuPont Textiles & Interiors Delaware, Inc., a wholly-owned subsidiary of the sole defendant in these cases, DuPont. DASRL has never conducted business in the United States, is incorporated under the laws of Argentina, and has its principal place of business in Buenos Aires, Argentina.

All of the claims in the twenty-five or more cases filed by the Jacobs & Crumplar law firm allegedly arose from work that Plaintiffs or their Argentine family members performed in Argentina for their Argentine employers. All injured Plaintiffs or Plaintiffs' decedents were diagnosed in Argentina and treated in Argentina.

Plaintiff in this case, Maria Elena Martinez, is the wife of a now deceased Argentine textile plant worker, Santos Roque Rocha (“Rocha”). Plaintiff claims that her husband suffered injuries from his exposure to asbestos while employed by DASRL, in Berazategui, Argentina. She has named DuPont as the sole defendant in this case and it is the only entity from which she seeks damages.

The Martinez case is one of the later-filed actions. It differs from the other cases in only two respects. First, Plaintiff in the case at bar alleges asbestos exposures related to a different manufacturing facility from the other cases. Mr. Rocha was employed at a plant in Berazategui rather than at DASRL's plant in Mercedes, Argentina, where the other cases allege exposure. Secondly, Martinez is unlike the other lawsuits because Plaintiff seeks to separate herself from these other Argentine plaintiffs that preceded her by claiming she is not trying to pierce the corporate veil of DASRL's parent corporation, a cause of action over which this Court lacks jurisdiction. Instead, Martinez has added a new theory of liability, the “direct participant” theory, which was not pled in the other actions.

In prior motions to dismiss some of these Argentine “test” cases, DuPont argued that if non-U.S. citizen foreign national workers were allowed to proceed against a U.S. grandparent corporation, rather than the properly incorporated and capitalized foreign subsidiary by whom they are or were directly employed, the structure and limited liability of the separate incorporated legal entity would be impermissibly disregarded. In essence, DuPont contended that the claims by Plaintiffs in these cases amount impermissibly to veil-piercing, over which the Superior Court has no jurisdiction. All of the motions to dismiss are based primarily upon the contention that the separate legal identity, which is the essence of incorporation and limited liability, cannot be impermissibly disregarded in this or any of the other Argentine cases.

This new “direct participant” theory of liability, pled only in the Martinez case, in addition to all of the other various claims and theories of liability, renders this particular case the most viable “test” case. The Martinez Complaint is the action in which Plaintiff has best been able to flesh out the various theories of liability. Accordingly, if the Martinez case cannot survive a motion to dismiss, the remaining cases will likely be subject to dismissal as well, since they assert all but one of the theories presented herein. This Opinion is rendered with the expectation that it will have application to the other similar cases filed by Argentine nationals.

II. Factual and Procedural Background

A. History

Plaintiff's decedent, Santos Rocha, was employed at the DASRL textile plant in Berazategui, Argentina from 1963 until 1980. He died of mesothelioma on August 1, 2009, twenty-nine years after he ceased employment with DASRL. His wife, Maria Martinez, was appointed as administrator of his estate (the “Rocha Estate”) by an Argentine court approximately a year after his death, on June 3, 2010. DASRL records confirm that Rocha was employed by DASRL, not DuPont, at the Berazategui plant.² He was never employed by DuPont.

During the years that Rocha was employed at the Berazategui Plant, the exclusive owner of the facility was DASRL.³ DASRL was a validly existing corporation, in good standing, organized under the laws of Argentina. DASRL's principle place of business is in Buenos Aires, Argentina. It conducts no business in the United States and has no offices in the United States. It has never filed a lawsuit in the United States nor has it ever been sued here. DuPont indirectly owns DASRL, in that it is its corporate great-great grandparent.⁴ In 2004, DASRL sold the majority of the Berazategui Plant to Invista Argentina Sociedad de Responsabilidad Limitada.

Neither Rocha nor the Administrator of his Estate has initiated any civil claims in Argentina against DASRL in connection with Rocha's asbestos-related occupational injury and death. Under Argentine law, an employee or his estate is required to notify the employer of the illness or injury and make a demand for compensation before initiating a civil suit for damages.⁵ Neither Rocha nor his estate has provided this notification nor has there been a demand for compensation in connection with his asbestos exposure.⁶ A civil mediation before a court-appointed mediator, which is a necessary prerequisite under Argentina law before filing a civil suit, has also not been initiated.⁷

B. The Complaint

The Complaint in this case was filed on April 23, 2010. It alleges six separate counts against DuPont, one of which is actually a statement of facts rather than a claim for relief. Count I, which is contained only in this (the Martinez ) case, asserts a direct liability claim against DuPont “due to its own separate and distinct tortious conduct.” This count essentially alleges that DuPont was responsible for the safety procedures and regulations that existed at the Berazategui plant, and that it either directly or indirectly caused workers there to use asbestos, without adequately warning them of its hazards and without providing protection from exposures. Specifically, Martinez asserts that DuPont “provided raw asbestos ... or contributed funds to purchase raw asbestos that was used” by DASRL at the plant. The Complaint also states that DuPont “provided management, engineering, and safety services to [DASRL] in a negligent manner,” causing injury to Rocha. DuPont is alleged to have “directed and/or controlled the use of asbestos at the ... Berazategui plant” either by direct employee interaction or through rules and regulations. Plaintiff also claims that DuPont trained DASRL (then DASA) management, staff, and employees in “unsafe ways” and “failed to provide proper training for the safe use and handling of asbestos.” Martinez further asserts that DuPont can be held liable for conducting health, safety, and occupational hygiene audits, and for monitoring production and safety procedures at the Argentine plants.

The allegations that are set forth in Count I reappear elsewhere throughout the Complaint. For example, in Count IV, which is the negligence count, Martinez asserts that DuPont failed to exercise ordinary care and caution for the safety of Rocha by: 1) requiring him to work with and around asbestos fibers in an unsafe manner; 2) failing to advise and/or warn workers of practices that would reduce the risk of inhaling, ingesting, or otherwise absorbing asbestos fibers; 3) failing to provide adequate warnings of the unreasonable risks of exposure to asbestos to those likely to come into contact with asbestos fibers at DASRL's plants; 4) failing to provide adequate safety equipment designed to limit Rocha's exposure to asbestos; and 5) failing to conduct adequate research into the safety risks posed by asbestos.

Similarly, Count VI of the Complaint, which is titled “DuPont's Liability in Argentina” alleges that DuPont acted negligently, willfully, and wantonly in allowing asbestos fibers to be utilized in the Berazategui plant, without any caution, warning, or safeguards, and in failing to enforce the same safety regulations in its Argentine subsidiary's plants as it imposed on its own manufacturing facilities in the United States. This Count further alleges that DuPont managers assigned to the Argentine subsidiaries were responsible for the imposition of inadequate safety regulations in the Argentine plant.

The allegations set forth in Count V raise the theory of strict liability as a basis for holding DuPont liable for engaging in an ultra-hazardous activity. This Count asserts that DuPont supplied and distributed asbestos-containing products without providing adequate warnings as to the dangers of asbestos exposure or appropriate safety...