NEEDREPLACE, Civil Action No. 12–6189.

CourtNew York District Court
Writing for the CourtSCHMEHL
Citation7 F.Supp.3d 490
Decision Date25 March 2014
Docket NumberCivil Action No. 12–6189.
PartiesBrenda Ann SCHWARTZ and Paul Grant Schwartz, Plaintiffs, v. ACCURATUS CORPORATION, in its own right and as successor in interest to Accuratus Ceramic Corporation, and Materion Brush Inc., c/o C T Corporation System, Defendants.

7 F.Supp.3d 490

Brenda Ann SCHWARTZ and Paul Grant Schwartz, Plaintiffs,
ACCURATUS CORPORATION, in its own right and as successor in interest to Accuratus Ceramic Corporation, and Materion Brush Inc., c/o C T Corporation System, Defendants.

Civil Action No. 12–6189.

United States District Court, E.D. Pennsylvania.

Signed March 24, 2014
Filed March 25, 2014

Motions granted in part and denied in part.

[7 F.Supp.3d 491]

Ruben Honik, Kevin William Fay, Golomb & Honik PC, Philadelphia, PA, for Plaintiffs.

A. Wesley Bridges, Jr., Becker Meisel LLC, Cherry Hill, NJ, Dennis R. Callahan, Ward Greenberg Heller & Reidy LLP, Philadelphia, PA, Jeffery D. Ubersax, Jones Day Reavis & Pogue, North Point, Cleveland, OH, for Defendants.


SCHMEHL, District Judge.

Plaintiffs Brenda Schwartz and her now-husband Paul bring claims for harm to Brenda they claim is the result of exposure to beryllium carried home from work on shoes and clothing by Paul and a third person who was their roommate. Defendants are two companies at which the husband and roommate worked with beryllium products. Resolution of their motions to dismiss involves choice of law issues, the viability of the “take-home” theory of negligence liability, and several potential avenues of strict liability. For reasons explained below, the Court will grant in part and deny in part the motions to dismiss. Specifically, the negligence claim is dismissed against Accuratus but may proceed against Brush; the strict products liability claim is dismissed against Accuratus and may proceed only in limited form against Brush; and the strict liability for abnormally dangerous activity claim may proceed against both Defendants.

Factual and Procedural Background

The primary Plaintiff is Brenda Ann Schwartz (“Brenda”), who allegedly suffers a variety of adverse health effects associated with chronic beryllium disease. Her husband, Paul Grant Schwartz (“Paul”), brings a loss of consortium claim. Both Plaintiffs are Pennsylvania residents. Defendants

[7 F.Supp.3d 492]

Accuratus Corporation (“Accuratus”) and Materion Brush Inc. (“Brush”) are two companies with plants in New Jersey manufacturing beryllium products.

As the name suggests, chronic beryllium disease results from exposure to beryllium, apparently in dust form; without undue focus on technical aspects at this stage, the factual and legal situation can be considered analogous to the more familiar issue of asbestos exposure. As with asbestos, exposure to beryllium can result from employment in facilities that work with it. However, Brenda was never employed by either Defendant; rather, she alleges she was exposed to beryllium carried home from work, on clothing and/or shoes, by Paul and a roommate named Gregory Altemose (“Altemose”).

Brenda and Paul met and began dating in 1978. Paul moved in with Altemose in 1979, and Brenda spent a lot of time at their apartment. In June 1980, Brenda married Paul and moved into the apartment, where all three lived together for a time. In 1978 and 1979—that is, when Brenda was merely dating Paul and visiting the apartment—Paul worked at Accuratus. Altemose also started at Accuratus in 1978, but continued working there until the present. Therefore, beryllium from Accuratus could have reached Brenda via Paul before they were married, or via Altemose, a roommate.

From 1979 through 1987, Paul worked at Brush. In addition, in 1978 and 1979, when Paul worked at Accuratus, Brush sold beryllium products to Accuratus, which may then have been used in further manufacturing processes at Accuratus. Therefore, beryllium from Brush could have reached Brenda via Paul while they were married, with Paul bringing it home directly from his employment at Brush, or via Altemose or Paul prior to the marriage bringing it home from employment at Accuratus (where at least some of the beryllium came from Brush).

Plaintiffs originally filed suit in state court. The suit named an additional Defendant, Dennis Tretter, a Pennsylvania citizen who was an Accuratus employee enforcing safety policies. On November 1, 2012, Defendants removed the action to this Court, arguing that Tretter was fraudulently joined to defeat diversity jurisdiction. Plaintiffs filed a motion to remand dealing with that issue, which Judge C. Darnell Jones denied on March 1, 2013. As discussed further below, Judge Jones's order (as well as a subsequent order denying reconsideration on April 5, 2013) examined Tretter's potential liability in a lengthy footnote and, finding none, ruled that Tretter's joinder was unfounded and jurisdiction in this Court on the basis of diversity was proper.

In accordance with Court order, Plaintiffs filed an Amended Complaint on May 2, 2013. Both Defendants moved to dismiss, although Accuratus chose not to file its own brief and instead rely on the brief submitted by Brush. The case was transferred to the undersigned on July 30, 2013, and a preliminary pretrial conference was held September 19, 2013. After the conference, the Court stayed discovery pending issuance of the present ruling on the motions to dismiss but nevertheless set discovery and other deadlines. Those deadlines are now extended by an order entered contemporaneously with this opinion.


Plaintiffs' Amended Complaint asserts ten counts. Counts I–IV are brought by Brenda against Accuratus for negligence, strict liability for abnormally dangerous activities, strict liability for ultrahazardous activities, and strict products liability under § 402A of the Restatement (Second) of

[7 F.Supp.3d 493]

Torts. Counts V–VIII are the same claims by Brenda against Brush. Count IX calls for exemplary damages across all claims, and Count X is Paul's claim for loss of consortium. The following analysis first addresses negligence, then products liability, and then abnormally dangerous/ultrahazardous activities jointly, considering the sometimes different situations of the two Defendants in each section. Choice of law is likewise addressed at least briefly within each issue in accordance with the principle of dépeçage. See Zavecz v. Yield Dynamics, Inc., 179 Fed.Appx. 116, 120 (3d Cir.2006).


The issue giving rise to the heated choice-of-law debate in the parties' briefs is whether the law applicable to this case imposes a duty that would allow for “take-home” liability of the sort contemplated by Brenda's claims that she, a party not employed by and with no direct relationship to Defendants, was harmed by beryllium carried home by others who were so employed. Sitting as it does in Pennsylvania, with jurisdiction by way of diversity, this Court applies Pennsylvania's choice-of-law rules. See Pac. Employers Ins. Co. v. Global Reinsurance Corp. of Am., 693 F.3d 417, 432 (3d Cir.2012). Under Pennsylvania choice-of-law, the court first asks whether there is an actual conflict between the laws of the states involved; if not, no analysis is necessary and the states' laws are interchangeable. Hammersmith v. TIG Ins. Co., 480 F.3d 220, 229–30 (3d Cir.2007). If there is a conflict, the court asks whether it is a true or false conflict or an unprovided-for situation. Id. at 230. If it is a true conflict, the court asks which state has the greater contacts and interest in seeing its law applied. Id. at 230–31. In unprovided-for situations, where neither state has an interest, traditional choice-of-law rules based on the type of action apply. Id. at 230 n. 9. If it is a false conflict, meaning “only one jurisdiction's governmental interests would be impaired by the application of the other jurisdiction's laws,” the law of the state with an interest applies. Id. at 229–30 (quoting Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir.1991)).

In classifying true and false conflicts and unprovided-for situations, courts look at the policies behind each state's law and may assess whether the states' laws are defendant-protecting or plaintiff-protecting, among other considerations. See id. at 230; see also Panthera Rail Car LLC v. Kasgro Rail Corp., 985 F.Supp.2d 677, CIV.A. 13–679, 2013 WL 6253449 (W.D.Pa. Dec. 4, 2013) (finding, with a California plaintiff, Pennsylvania defendants, and a contract calling for Minnesota law, that Minnesota had no interest because its law protected defendants and defendants were not Minnesota residents, Pennsylvania did have an interest because its rule protected its resident defendants, and California also had an interest because its rule protected its resident plaintiff); Davis v. Geico Gen. Ins. Co., 957 F.Supp.2d 544 (M.D.Pa.2013) (explaining that if all states were understood to have a general interest in seeing their law applied, the true/false conflict analysis would be unnecessary and meaningless, and reasoning that Delaware had no interest in applying its rule preventing recovery of attorney fees to protect an out-of-state defendant insurance company); Reinert v. Nationwide Ins. Co., CIV.A. 12–1094, 2013 WL 1311097 (E.D.Pa. Apr. 2, 2013) (finding a false conflict in a suit by Pennsylvania citizens against an insurer related to a car accident that occurred in North Carolina, and defining Pennsylvania's interest as controlling insurance costs and North Carolina's interest as protecting the motoring public).

[7 F.Supp.3d 494]

Here, the parties concede the presence of an actual conflict is at least debatable. New Jersey has allowed take-home liability in the asbestos context. See Olivo v. Owens–Illinois, Inc., 186 N.J. 394, 895 A.2d 1143, 1149–50 (2006). Pennsylvania has no case affirmatively providing for take-home liability, but the cases specifically denying the existence of such a duty under Pennsylvania law are not opinions from Pennsylvania's own courts. See In re Asbestos Litig., CIV.A. N10C–04203ASB, 2012 WL 1413887 (Del.Super.Ct. Feb. 21, 2012) (concluding, largely because of the tenuous relationship between an employer and an employee's spouse, that “under Pennsylvania law an employer/premises...

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