Napier v. Osmose, Inc.

• Decision Date: 14 November 2005
• Docket Number: No. 1:03-CV-335.,1:03-CV-335.
• Parties: Sonya NAPIER and John Napier, Plaintiffs, v. OSMOSE, INC., Arch Wood Protection, Inc., and Chemical Specialties, Inc., Defendants.
• Court: U.S. District Court — Western District of Michigan

399 F.Supp.2d 811

Sonya NAPIER and John Napier, Plaintiffs, v. OSMOSE, INC., Arch Wood Protection, Inc., and Chemical Specialties, Inc., Defendants.

No. 1:03-CV-335.

United States District Court, W.D. Michigan, Southern Division.

November 14, 2005.

David S. McCrea, McCrea & McCrea, Bloomington, IN, James F. Graves, Sinas Dramis Brake Boughton & McIntyre PC, Lansing, MI, for Plaintiffs.

Aviva L. Wernick, Hughes Hubbard & Reed LLP, Miami, FL, Brian C. Kelly, Bush Seyferth Kethledge & Paige PLLC, Troy, MI, David A. Kanter, Richard Joseph Jancasz, Wildman Harrold Allen & Dixon, Chicago, IL, Larry L. Justice, Stephen D. McGraw, Timothy A. Greimel, Kerr, Russell and Weber, PLC, Detroit, MI, for Defendants.

OPINION AND ORDER ON PENDING MOTIONS

MILES, Senior District Judge.

This diversity product liability action is currently before the court on the following motions: (1) a motion by defendants for dismissal or, in the alternative, for summary judgment (docket no. 112), and (2) a motion by plaintiffs for time to conduct discovery to respond to the defendants' motion (docket no. 116).

For the reasons to follow, the court grants the defendants' motion, denies plaintiffs' motion, and dismisses this action.

I

On June 30, 2001, plaintiff Sonya Napier got a splinter in her foot. The splinter apparently came from wood used in the construction of a deck attached to the home which Sonya Napier shared with her husband, co-plaintiff John Napier. According to the allegations of plaintiffs' third amended complaint, the wood used in constructing the deck was treated with a pesticide containing inorganic arsenic. The presence of arsenic in the treated wood, plaintiffs' allege, caused Sonya Napier to suffer "toxic effects" from the splinter in her foot, resulting in serious permanent injury. In this action, plaintiffs are seeking recovery of damages for both personal injury and damage to property. The claim for property damage is based on the Napiers' allegation that the deck continues to pose additional "toxic and carcinogenic risks" such that it needs to be replaced with "non-toxic" wood. Third Amended Complaint at 4, ¶ s 11-12.

The current defendants are three New York companies which have manufactured and sold pesticide containing inorganic arsenic.¹ In their third amended pleading, plaintiffs have alleged that they are unable to identify which of the defendants caused their claimed damages. Third Amended Complaint at 9, ¶ 38. According to plaintiffs, due to the nature of both inorganic arsenic wood preservative and the wood treated with it, these products "cannot be traced to a specific manufacturer[.]" Third Amended Complaint at 7, ¶ 28. Notwithstanding their inability to trace the product used in the construction of their deck to a particular defendant, plaintiffs seek to hold each of the defendants liable for their damages, based on theories of "alternative liability" and "concert of action," and on the basis that the defendants are the only manufacturers and sellers of pesticide products containing inorganic arsenic.

II

The defendants seek dismissal of plaintiffs' third amended complaint for failure to state a claim under Fed.R.Civ.P. 2(b)(6) or, alternatively, summary judgment under Fed.R.Civ.P. 56.

"The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). In reviewing a motion under the rule, the court must accept pleaded factual allegations as true. Id. "Only well-pleaded facts, however, must be taken as true[,]." and the court "need not accept as true legal conclusions or unwarranted factual inferences." Lewis v. ACB Business Services, Inc., 135 F.3d 389, 405 (6th Cir.1998). "If an allegation is capable of several inferences, the allegation must be construed in a light most favorable for the plaintiff." Mayer, 988 F.2d at 638. However, the admonishment to construe the plaintiffs' allegations liberally when evaluating a motion under Rule 12(b)(6) does not relieve plaintiffs of their obligation to allege more than bare assertions of legal conclusions. Lewis, 135 F.3d at 405-406. In order to survive a motion under the rule, plaintiffs' complaint must contain either direct or inferential allegations respecting all the material elements to sustain recovery under some viable legal theory. Greenberg v. The Life Ins. Co. of Virginia, 177 F.3d 507, 514 (6th Cir. 1999); Lewis, 135 F.3d at 406; Weiner v. Klais and Co., Inc., 108 F.3d 86, 88 (6th Cir.1997).

"Matters outside of the pleadings are not to be considered by a court in ruling on a 12(b)(6) motion to dismiss." Weiner, 108 F.3d at 88. If, on a motion under Rule 12(b)(6), matters outside the pleadings are presented and not excluded by the court, then the court is required to treat the motion to dismiss as one for summary judgment under Rule 56. Fed.R.Civ.P. 12(b); Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972). Here, although both sides have presented matters outside the pleadings, the court has not considered these outside materials. It is unnecessary to do so, for plaintiffs' third amended complaint on its face fails to state a viable claim under Michigan law. In sum, the court has treated the defendants' motion as one under Rule 12(b)(6), not one under Rule 56.

III

"Generally, a well-pleaded claim for personal injury must allege that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, (3) the defendant's breach was the proximate cause of the plaintiff's injuries, and (4) damage." Moll v. Abbott Laboratories, 444 Mich. 1, 506 N.W.2d 816, 824 (1993). Here, the defendants appear to be challenging whether the allegations of plaintiffs' third amended complaint are sufficient to satisfy the required element of causation. In their motion and supporting brief, the defendants argue that plaintiffs' claims fail as a matter of law because plaintiffs have alleged that they cannot meet the product identification requirement.

Under Michigan law, "the threshold requirement of any products liability action is identification of the injury-causing product and its manufacturer." Abel v. Eli Lilly and Company, 418 Mich. 311, 343 N.W.2d 164, 170 (1984). "The plaintiff must produce evidence of a defect which caused the [injury] and trace that defect into the hands of the defendant." Id. "This identification requirement is, of course, a facet of the factual causation element of tort law." Id. at 170 n. 8. The defendants argue that plaintiffs cannot meet this threshold requirement because they have conceded that they "are unable to identify which actor caused the injuries suffered by Sonya Napier and John Napier." Brief in Support of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment at 5; Third Amended Complaint at 9, ¶ 38.

In their response to the defendants' motion, plaintiffs do not back away from their position that they are unable to identify the actor who caused them injury. However, they argue that they have nonetheless alleged all of the facts necessary to invoke theories of alternative liability and concert of action in place of the causation element of their product liability claim. The sole authority on which plaintiffs rely in support of their position is Michigan's Abel case.

In Abel, the plaintiffs, who were daughters (and sons-in-law) of women who had taken the drug DES during their pregnancy, sued the manufacturers of DES, a form of synthetic estrogen. The plaintiffs alleged that as a result of prenatal exposure to synthetic estrogen, they were suffering from cancerous or pre-cancerous lesions of the vagina. Many of the plaintiffs, who were unable to identify the manufacturer of the particular synthetic estrogen to which they were exposed, sought a way "to circumvent the traditional tort element of causation in fact." 343 N.W.2d at 167. Specifically, in order to "bypass the identification requirement," the plaintiffs sued all of the manufacturers of synthetic estrogens for pregnancy use in Michigan, alleging that the manufacturers were jointly and severally liable under theories of alternative liability, concert of action, and "collective" or "industry-wide liability." Id. The plaintiffs therefore sought to impose joint and several liability upon all of the defendants for their injuries, even though a number of the plaintiffs acknowledged that they were unable to identify the specific estrogen product and the manufacturer that produced or distributed the product. Id., 343 N.W.2d at 168. It was undisputed in the case that plaintiffs would not be able to meet the identification requirement. Id, 343 N.W.2d at 170.

The defendants in Abel argued that plaintiffs' allegations were deficient in two respects. First, they argued, plaintiffs had failed to establish the causation in fact element required in any products liability action. Second, they further argued, plaintiffs were asserting a collective, industry wide liability cause of action not recognized under Michigan law. 343 N.W.2d at 169-170. Exploring the theory of alternative liability, the court in Abel described the theory as a "procedural device" which "shifts the burden of proof on the element of causation in fact to the defendants once an innocent plaintiff demonstrates that all defendants acted tortiously, but only one unidentifiable defendant caused plaintiff's injury." Id. at 170 (citing Summers v. Tice, 33 Ca1.2d 80, 199 P.2d 1 (1948)). The court observed that under this theory, "[i]f the defendants cannot meet this burden and exculpate themselves, joint and several liability will be imposed." 343 N.W.2d at 170. After exploring the theory as it had developed in Michigan jurisprudence, the court formally approved of alternative liability, but one which was "modified" in order to "accommodate the unique facts" of the case. Id. at...