Molina v. On Semiconductor Corp.

• Decision Date: 27 March 2013
• Docket Number: C.A. No. N10C-12-267 JRJ
• Parties: Arianna Molina, by her Parents and Natural Guardians, Melissa Madrid and Jacob Molina and Melissa Madrid and Jacob Molina, individually, Plaintiffs, v. On Semiconductor Corporation and Semiconductor Components Industries d/b/a On Semiconductor, Defendant.
• Court: Delaware Superior Court

Arianna Molina, by her Parents and Natural Guardians, Melissa Madrid and Jacob Molina and Melissa Madrid and Jacob Molina, individually, Plaintiffs, v. On Semiconductor Corporation and Semiconductor Components Industries d/b/a On Semiconductor, Defendant.

C.A. No. N10C-12-267 JRJ

SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Date Submitted: December 28, 2012

Date Decided: March 27, 2013

OPINION

Upon Defendants On Semiconductor Corporation and Semiconductor Components Industries d/b/a On Semiconductor's Motion to Dismiss Plaintiffs' First Amended Complaint: DENIED

Steven J. Phillips, Esquire (pro hac vice) (argued), Phillips & Paolicelli, LLP, 380 Madison Avenue, 24th Floor, New York, New York, 10017, Aryeh Taub, Esquire, Levy, Phillips & Konigsberg, LLP, 800 Third Avenue, 11th Floor, New York, New York, 10022 (pro hac vice), J. Zachary Haupt, Esquire, Bifferato LLC, 800 North King Street, Plaza Level, Wilmington, Delaware, 19801. Attorneys for Plaintiffs.

Kevin J. Connors, Esquire, (argued), Marshall, Dennehey, Warner, Coleman & Goggin, 1220 North Market Street, 5th Floor, Wilmington, Delaware, 19801. Attorneys for Defendants.

Jurden, J.

I. INTRODUCTION

Before the Court is Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint pursuant to Super. Ct. Civ. R. 12(b)(6). Defendants move to dismiss on the following grounds: (1) there is no viable cause of action for preconception injury under Arizona law; (2) Plaintiffs have failed to plead the essential elements of duty and causation; and (3) Plaintiffs' claims are barred by the exclusivity provision of Arizona worker's compensation law. For the reasons that follow, Defendants' motion is DENIED.

II. BACKGROUND/FACTS

The minor plaintiff, Arianna Molina ("Arianna"), was born on September 11, 2003 with severe birth defects.¹ Arianna suffers from muscular dystrophy, is confined to a wheelchair, requires a tracheotomy and ventilator to breathe, and requires a feeding tube to eat.² Arianna's mother, Melissa Madrid ("Mother"), was employed by Defendants and worked at their semiconductor manufacturing and electrical measuring instrument manufacturing facilities located in Arizona from 1999 through 2003.³

During her employment with Defendants, Mother worked in and around "clean rooms" and elsewhere at Defendants' Phoenix, Arizona, facilities wheresemiconductor wafers, microchips, and boards were being manufactured for use in computers.⁴ According to Plaintiffs, Defendants designed, manufactured, distributed, sold, supplied, and installed allegedly hazardous and reproductively toxic chemicals or substances for use in Defendants' clean rooms and elsewhere, where the Defendants utilized them in the manufacturing process of semiconductor computer wafers, chips, and boards.⁵ Further, according to Plaintiffs, Defendants not only failed to utilize proper measures to prevent their workers, particularly female workers of childbearing age and pregnant workers, from being exposed to these reproductively toxic chemicals and substances, but they also failed to warn their workers of the dangerous characteristics of the chemicals and substances and the health threats that they posed, failed to test and study the chemicals to fully appreciate their capacity to cause reproductive harm, made representations "incorrectly and untruthfully" that the chemicals and substances were safe and suitable for use, assured their workers, including Mother, that adequate protections were in place to prevent any harm to them or their future offspring, and concealed from Mother that contact with these chemicals and substances posed severe health hazards to her offspring.⁶ Plaintiffs allege that Defendants knew or should have known that the chemicals to which Mother was allegedly exposed can causereproductive hazards, including spontaneous abortions, stillbirths, malformations, birth defects, early childhood cancers, and other neurological, developmental, and degenerative conditions.⁷

Plaintiffs allege that as a consequence of Mother's employment, Mother was exposed, and Arianna was exposed in utero, to these reproductively harmful chemicals and substances which caused physical injury to Arianna.⁸ Plaintiffs assert claims of: (1) negligence, (2) premises liability, (3) strict liability, (4) abnormally dangerous/ultra hazardous activity, (5) willful, wanton, and intentional conduct, (6) breach of an assumed duty, and (7) loss of consortium.⁹

III. STANDARD OF REVIEW

On a 12(b)(6) motion to dismiss, the Court must accept every well-pled allegation as true and draw all reasonable inferences in the non-movant's favor.¹⁰ Allegations are well-pled if they place a defendant on notice of the claim at issue.¹¹ Dismissal should be denied unless "it appears to a certainty that the plaintiff could not recover under any reasonably conceivable set of circumstances susceptible of proof."¹²

IV. CHOICE OF LAW

Defendants maintain that Arizona substantive law governs this action, but Plaintiffs argue that choice of law is "premature" because there has been no fact discovery.¹³ Plaintiffs allege in the FAC that Arianna and her parents reside in Arizona, Mother was employed by Defendants in Arizona at the time Arianna was conceived, Mother worked for Defendants in Arizona from 1999 until her 38th week of her pregnancy with Arianna in 2003, Mother and Arianna's exposures occurred in Arizona, and Arianna was born in Arizona. The Court disagrees that choice of law is premature. Based on the well-pled allegations in Plaintiffs' FAC, there is little question that Arizona substantive law applies to Plaintiffs' claims.¹⁴

V. DISCUSSION

A. Does Arizona Law Impose a Duty on Employers to the Unborn Children of Employees?

Defendants argue that under Arizona law employers owe no duty to the unborn children of their employees.¹⁵ While Plaintiffs acknowledge that no Arizona court has addressed this issue directly, they point to the ArizonaConstitution and decisions of the Arizona Supreme Court which expressly recognize that tortious conduct preceding conception can give rise to an actionable negligence claim, and note that unlike the minor plaintiff in Smith v. Freescale Semiconductor, Inc., Arianna was exposed in utero.¹⁶

The text of the Arizona Constitution is "broad" and "unambiguous" and contains a specific clause expressly prohibiting abrogation of the right to recover damages.¹⁷ As illustrated below, the Arizona Supreme Court has consistently held that the right to bring a tort claim is a fundamental right and has struck down laws that interfere with that fundamental right.

In Kenyon v. Hammer,¹⁸ the Arizona Supreme Court allowed a wrongful death claim on behalf of a stillborn child notwithstanding the fact that the wrongful conduct causing the injury occurred years before the child's conception. As a result of an erroneous entry in the mother's chart, the mother's doctor failed to administer RhoGAM to the mother during the birth of her first child. Based on the mother's blood type, the administration of RhoGAM was necessary to protect the mother's future offspring from serious injury or death. Five years later, the mother became pregnant again. The earlier failure to receive RhoGAM resulted in hersecond child being stillborn. The parents brought a wrongful death claim on behalf of their stillborn child against the doctor, vicariously, for his nurse's negligence five years prior to their second child's conception. The lower courts dismissed the action on statute of limitations grounds. The Arizona Supreme Court reversed and allowed the action to proceed, noting that the right to bring and pursue the action was a "fundamental right" guaranteed by the Arizona Constitution, and, therefore, a limitations period that effectively abrogated that right was unconstitutional.¹⁹ In so holding, the Arizona Supreme Court recognized the right of a child to sue for injury or death caused by tortious conduct that occurred years prior to conception.

In Walker v. Mart,²⁰ the issue was whether Arizona recognized a cause of action for wrongful life. There, a mother-to-be contracted German measles (Rubella) in her first trimester. Her doctor failed to inform her of the resulting risks to her unborn child. Had the mother been informed of the risks, she would have aborted the fetus. The child was born with Rubella Syndrome, marked in her case by severe birth defects. The mother brought a claim for "wrongful birth," and a claim for "wrongful life" on behalf of the child alleging that but for the doctor's negligence, mother would have terminated the pregnancy.²¹

Noting that Arizona law allows parents who establish that a doctor's negligence prevented them from exercising their right to terminate a pregnancy, tobring a "wrongful birth" claim,²² the Arizona Supreme Court focused on whether a child born under the circumstances in Walker could bring a claim for "wrongful life." The Court in Walker held that such a claim sounded in negligence, and therefore analyzed the child's claim under traditional principles of Arizona negligence law.²³ The Court in Walker held that if the attending physicians had been negligent in rendering prenatal care and thereby injured the child in utero, the child could bring a tort claim for damages caused by the doctors' negligence.²⁴ The Walker Court expressly held that the duty owed to the parents "inures derivatively" to the child who was in utero when the wrongful conduct occurred."²⁵ Although in Walker the child did not claim that defendants injured her in utero, the case is instructive to the extent it makes clear that children injured while in utero may bring negligence claims for their in utero injuries.

In Myers v. Hoffman-La Roche, Inc. ,²⁶ a child, through her mother, sued the manufacturer of Accutane for injuries she allegedly sustained as a result of her mother's use of Accutane while pregnant. The Arizona Court of Appeals held in Myers that the child's claims were not barred by the wrongful...