McClenathan v. Rhone-Poulenc, Inc.

Decision Date30 May 1996
Docket NumberCivil Action No. 2:96-0163.
Citation926 F. Supp. 1272
PartiesCarlton McCLENATHAN, et al., Plaintiffs, v. RHONE-POULENC, INC., Defendant.
CourtU.S. District Court — Southern District of West Virginia

Richard Neely, Neely & Hunter, Charleston, WV, Jack W. Harang, New Orleans, LA, Henry Dart, Metairie, LA, for plaintiffs.

James Eric Whytsell and A.L. Emch, Jackson & Kelly, Charleston, WV, for defendant.


HADEN, Chief Judge.

Pending is Defendant's motion to dismiss. Defendant's motion is GRANTED in part and DENIED in part.1


Defendant is a New York corporation doing business in Kanawha County, West Virginia. Plaintiffs are putative class representatives of persons seeking redress for events that occurred on February 15, 1996.2 A fire broke out at Rhone-Poulenc's Institute, West Virginia plant on that date. During the occurrence, a cloud of toxic substances that contained toluene and MIC was released into the area atmosphere.

Pre-established emergency response procedures were implemented by Defendant and public officials. As a result, the public was ordered to "shelter-in-place" and certain thoroughfares were closed temporarily. A few individuals suffered physical injuries from exposure to the chemicals. Most of those affected suffered only inconvenience and emotional distress occasioned by the incident.

Plaintiffs filed this action on February 26, 1996. The Complaint contains five "Counts" alleging claims for (1) strict liability pursuant to Restatement (Second) of Torts § 519 (1977); (2) general strict liability or, in the alternative, negligence; (3) res ipsa loquitur; (4) "medical monitoring;" and (5) class action certification.3 The complaint seeks compensatory and punitive damages as well as equitable relief to require Defendant's submission to regular independent safety audits.

Defendant requests the Court to dismiss with prejudice all claims to the extent they purport to aver: (1) claims for emotional distress unrelated to a physical injury; (2) claims for inconvenience, out-of-pocket expenses, lost wages, lost profits, or other "harms" unrelated to personal injury or physical damage to property; (3) claims for "medical monitoring" of those class members who, purportedly, now have an increased likelihood of contracting cancer, pulmonary disease, or other ailments in the future due to chemical exposure; (4) a claim under the evidentiary doctrine of res ipsa loquitur; and (5) claims seeking independent safety audits of Defendant's Institute facility.

A. Standard Governing a Motion to Dismiss:

The movant faces a difficult and exacting burden under Rule 12(b)(6), Federal Rules of Civil Procedure. The well-settled standard applicable to a motion to dismiss was recently restated by this Court as follows:

`In general, a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief. In considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.' Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993), cert. denied sub nom., American Home Products Corp. v. Mylan Laboratories, Inc., ___ U.S. ___, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994).

Hurt v. United States, 889 F.Supp. 248, 251 (S.D.W.Va.1995).

Commentators recognize "technical defects in a complaint ... are no longer grounds for final dismissal" and "the fact that a complaint is inartistically drawn is not grounds for its dismissal...." 27 Thomas J. Goger et al., Federal Procedure § 62:21 (1984). Nevertheless, "there is no duty on the part of a court to create a claim which the plaintiff has not spelled out in his complaint." Id.

B. Emotional Distress

Defendant asserts West Virginia law generally does not allow recovery of damages for emotional distress absent a related physical injury either directly caused by or later resulting from the tort. Defendant correctly recognizes (1) mere exposure to toxic chemicals, without more, does not constitute a physical injury; and (2) Plaintiffs have not identified any physical manifestations of the alleged distress.

In Ball v. Joy Technologies, Inc. Co., 958 F.2d 36 (4th Cir.1991), cert. denied, 502 U.S. 1033, 112 S.Ct. 876, 116 L.Ed.2d 780 (1992), our Court of Appeals stated the then-existing law on the recovery of emotional distress damages:

Courts in West Virginia ... have recognized that damages for emotional distress may be recovered in three specific instances: (1) where the emotional disturbance results from an actual physical injury caused by the impact or occurrence of the tort; (2) where there is no initial impact or injury but physical injury thereafter results as the causal effect of the defendant's wrong; and (3) where there is no impact or physical injury but emotional disturbance results from an intentional or wanton wrongful act caused by the defendant.

Id. at 39 (citations omitted) (emphasis added); see also Tobin v. Ravenswood Aluminum Corp., 838 F.Supp. 262, 271 n. 11 (S.D.W.Va.1993); Mutafis v. Erie Ins. Exchange, 561 F.Supp. 192, 203 (N.D.W.Va. 1983), aff'd, 775 F.2d 593 (4th Cir.1985); Allen v. Smith, 179 W.Va. 360, 363-64, 368 S.E.2d 924, 928 (1988) (discussing the rationale for allowing recovery of emotional distress as an element of damages for an intentional tort unaccompanied by resulting physical injury and stating "in these situations the severity of the underlying act is utilized to support the reasonableness of the claim for emotional distress.").4

Plaintiffs' mere exposure to toxic chemicals is not a physical injury under West Virginia law. Ball, 755 F.Supp. 1344, 1364, aff'd, 958 F.2d at 38-39, cert. denied, 502 U.S. 1033, 112 S.Ct. 876, 116 L.Ed.2d 780 (1992). Ball's holding is supported by analogous recent pronouncements from the West Virginia Court. See, e.g., Johnson v. West Virginia Univ. Hosps., Inc., 186 W.Va. 648, 652, 413 S.E.2d 889, 893 (1991) (stating "before a recovery for emotional distress damages may be made due to a fear of contracting a disease, such as AIDS, there must first be exposure to the disease.") (emphasis added).

Further, Plaintiffs do not allege suffering subsequent resulting physical manifestations. According to Ball, Plaintiffs' best, and perhaps only, chance for recovery of these damages is via a properly pled intentional tort. The only such tort conceivably applicable here is a claim for intentional infliction of emotional distress.5

West Virginia's law for compensating plaintiffs with purely mental injuries has advanced somewhat since the following turn-of the-century statement by the Supreme Court of Appeals:

"anxiety of mind and mental torture are too refined and too vague in their nature to be the subject of pecuniary compensation in damages, except where, as in case of personal injury, they are so inseparably connected with the physical pain that they cannot be distinguished from it, and are therefore considered a part of it."

Davis v. Western Union Tele. Co., 46 W.Va. 48, 53, 32 S.E. 1026, 1028 (1899) (quoted authority omitted).

The sea change in West Virginia law since Davis was summed up by Justice Thomas B. Miller's observations in Courtney v. Courtney, 190 W.Va. 126, 437 S.E.2d 436 (1993), quoting first from analogous extra-territorial precedent:

"The ... court in Paugh v. Hanks, 451 N.E.2d 759 (Ohio 1983) further stated that `a rigid requirement which prevents a plaintiff from recovering from serious emotional harm except where a physical injury manifestation has ensued, completely ignores the advances made in modern medical and psychiatric science.' The court further pointed out that `serious emotional distress can be as severe and debilitating as physical injury and is no less deserving of redress.'"
From the foregoing, it seems clear that an action for severe emotional distress caused by a defendant's tortious conduct is a personal injury....
It is too late in the day medically to say that recognizable mental or emotional injuries that arise from severe emotional distress are not injuries to the person.
... It is a species of personal injury.
For the foregoing reasons, we conclude that a claim for severe emotional distress arising out of a defendant's tortious conduct is a personal injury claim and is governed by a two-year statute of limitations under W.Va.Code, 55-2-12(b).

Id. at 131, 132, 133, 437 S.E.2d at 441, 442, 443 (citations omitted) (emphasis added); see also Bramer v. Dotson, 190 W.Va. 200, 202, 437 S.E.2d 773, 775 (1993) (stating "We held in Courtney that a claim for severe emotional distress arising out of a defendant's tortious conduct is a personal injury claim."); Heldreth v. Marrs, 188 W.Va. 481, 485, 425 S.E.2d 157, 161 (1992) (overruling in part Monteleone v. Co-operative Transit Co., 128 W.Va. 340, 36 S.E.2d 475 (1945) and stating "In 1945, we did not fully envision the advancements that were ultimately made in the medical and psychiatric sciences, which have been recognized by other courts, that have enabled physicians to diagnose serious emotional distress and identify malingerers. Reliable medical evidence is available to weed out the fraudulent and trivial claims.")

Perhaps the quantum leap in West Virginia jurisprudence recognizing emotional distress damage claims occurred in Harless v. First National Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982). In Syllabus Point 6 of Harless, the Supreme Court of Appeals adopted the formulation for the intentional infliction of emotional distress, commonly known as the tort of outrage, contained in Restatement (Second) of Torts § 46 (1977):

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily

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