Parker v. Brush Wellman, Inc.

• Decision Date: 29 March 2005
• Docket Number: No. CIV.A.1:04 C V 0606.,CIV.A.1:04 C V 0606.
• Citation: 377 F.Supp.2d 1290
• Parties: Neal PARKER; Wilbert Carlton; Stephen King; Ray Burns; Deborah Watkins; Leonard Ponder; Barbara King; and Patricia Burns, individually and on behalf of all others similarly situated, Plaintiffs, v. BRUSH WELLMAN, INC.; Schmiede Machine & Tool Corporation; Thyssenkrupp Materials NA, Inc. d/b/a Copper & Brass Sales, Inc.; Axsys Technologies, Inc.; Alcoa, Inc.; McCann Aerospace Machining Corporation; Cobb Tool, Inc.; and Lockheed Martin Corporation, Defendants.
• Court: U.S. District Court — Northern District of Georgia

Page 1290

377 F.Supp.2d 1290

Neal PARKER; Wilbert Carlton; Stephen King; Ray Burns; Deborah Watkins; Leonard Ponder; Barbara King; and Patricia Burns, individually and on behalf of all others similarly situated, Plaintiffs, v. BRUSH WELLMAN, INC.; Schmiede Machine & Tool Corporation; Thyssenkrupp Materials NA, Inc. d/b/a Copper & Brass Sales, Inc.; Axsys Technologies, Inc.; Alcoa, Inc.; McCann Aerospace Machining Corporation; Cobb Tool, Inc.; and Lockheed Martin Corporation, Defendants.

No. CIV.A.1:04 C V 0606.

United States District Court, N.D. Georgia, Atlanta Division.

March 29, 2005.

William Grady Hasty, Jr., Hasty Pope & Ball, Canton, GA, Robert E. Shields, Doffermyre Shields Canfield Knowles & Devine, Atlanta, GA, James Hugh Webb, Jr., Webb Lindsey & Wade, Peachtree City, GA, for Plaintiffs.

J. Kevin Buster, Richard Anthony Schneider, Carmen R. Toledo, Barry Goheen King & Spalding, James Royce Johnson, Robin A. Schmahl, Corliss Lawson, David G. Greene, Jeffrey Scott Bazinet, Paul T. Kim, Lord Bissell & Brook, Edward McDowell Newsom, Alycen A. Moss, Smith Moore, Henry Lane Young, II, M. Elizabeth O'Neill, Hawkins & Parnell, Leeann Jones, Melissa F. Davis, Powell Goldstein Frazer & Murphy, Stephen Edmund O'Day, Andrew McFee Thompson, Smith Gambrell & Russell, Jennifer Grandoff Cooper, Jessica A. Ryan, Gambrell & Stolz, Sewell K. Loggins, Anne M. Landrum, Mozley Finlayson & Loggins, Atlanta, GA, Jeffrey D. Ubersax, PHV, Jones Day, Cleveland, OH, A. Scott Ross, PHV, Philip D. Irwin, PHV, Neal & Harwell, Nashville, TN, Garth W. Aubert, PHV, Mendes & Mount, Los Angeles, CA, for Defendants.

ORDER

STORY, District Judge.

This case comes before the Court on Defendant Alcoa, Inc.'s Motion to Dismiss for Failure to State a Claim, or in the Alternative, Motion for a More Definite Statement [5]; Defendant Lockheed Martin Corporation's Motion to Dismiss or, in the Alternative, for a More Definite Statement [8]; Defendant Lockheed Martin Corporation's Motion for Judgment on the Pleadings as to Plaintiff's Medical Monitoring, Strict Liability (Ultrahazardous Activity), Increased Risk and Fear Claims [17]; Defendant Alcoa Inc.'s Motion for Judgment on the Pleadings as to Plaintiffs' Claims for Medical Monitoring, Strict Liability (Ultra-Hazardous Activity), and Increased Risk and Fear [18]; Defendant Brush Wellman Inc.'s Motion for Judgment on the Pleadings Based on Plaintiffs' Lack of Any Cognizable Injury [22]; Defendant Axsys Technologies Inc.'s Motion to Dismiss for Lack of Personal Jurisdiction [28], Motion of Defendant McCann Aerospace Machining Corporation to Dismiss Plaintiffs' Complaint/Motion for More Definite Statement, or in the Alternative, Motion for Judgment on the Pleadings [31]; Schmiede Corporation's Motion to Dismiss or, in the Alternative, for a More Definite Statement [57]; and Defendants' Unopposed Motion for Leave to Exceed Page Limits in their Joint Reply Brief [87].

As a preliminary matter, Defendants' Unopposed Motion for Leave to Exceed Page Limits in their Joint Reply Brief [87] is GRANTED nunc pro tunc. After reviewing the record and the parties' briefs, the Court addresses the remaining motions before it through the following Order.

Background

Plaintiffs, certain current and former employees of Defendant Lockheed Martin Corporation ("Lockheed"),¹ as well as select members of those persons' families, initiated this putative class action in the Superior Court of Fulton County, Georgia in late January 2004. Two months later, Lockheed removed the case to federal court pursuant to 28 U.S.C. § 1442(a)(1).

In their Complaint, Plaintiffs allege, generally, that Defendants are all involved in some capacity in the manufacture and/or use of products containing beryllium. (Compl.¶¶ 15-16.) Plaintiffs assert that they were exposed to a respirable form of the substance, either by virtue of their work at the Lockheed facility in Marietta, Georgia, or through the work of family members at that location who carried beryllium residue home on their skin, clothes, and belongings. (Id. ¶ 17.)

According to Plaintiffs, beryllium is a toxic substance, exposure to which can result in adverse effects ranging "from sub-clinical, cellular, and sub-cellular damage, to acute and chronic lung disease, dermatologic disease and cancer." (Compl.¶ 19.) Plaintiffs go on to claim that Defendants either knew or should have known that beryllium had the propensity to cause such injuries, and that their activities at Lockheed's Marietta facility would result in the Plaintiffs' exposure to harmful quantities of the substance. (Id. ¶¶ 17-18.) Further, Plaintiffs allege:

As a foreseeable, direct and proximate result of their exposure to the hazardous substance beryllium, Plaintiffs and other Lockheed workers and their families already have suffered and will suffer in the future personal injuries in the form of sub-clinical, cellular, and sub-cellular damages and some have suffered from acute and chronic lung disease, dermatologic disease, and chronic beryllium disease.

(Id. ¶ 22.) Moreover, they assert that all such persons "have been placed at substantially increased risk of catastrophic latent disease, such as chronic beryllium disease and cancer" and "have suffered and will suffer in the future from fear, anxiety, and emotional upset as a result of their personal injuries and because they have been placed at substantially increased risk of catastrophic chronic disease." (Id. ¶¶ 23-24.)

Relying on the foregoing allegations, Plaintiffs assert claims for the establishment of a medical monitoring fund, as well as for strict liability in tort, negligence, strict liability for abnormally dangerous and ultra-hazardous activities, fraudulent concealment and civil conspiracy, as well as for punitive damages and attorneys' fees.

Discussion

Despite the considerable number of motions currently before the Court, the issues ripe for its consideration are actually quite limited. First, the Court must determine whether Plaintiffs' Complaint is so vague and ambiguous as to require a more definite statement. Second, it must evaluate the viability of certain aspects of Plaintiffs' claims, including whether the harmful effects enumerated in Plaintiffs' Complaint constitute cognizable "injuries" under Georgia law, and whether Plaintiffs' claims for medical monitoring and strict liability with respect to alleged ultra-hazardous activities state grounds for relief. Finally, the Court must evaluate whether Defendant Axsys Technologies Inc. ("Axsys") is entitled to be dismissed from this lawsuit for lack of personal jurisdiction. The Court considers each of these issues below.

I. Motions for More Definite Statement

Defendants Alcoa, Inc. ("Alcoa"), Lockheed Martin Corporation, McCann Aerospace Machining Corporation ("McCann"), and Schmiede Corporation ("Schmiede") each request that the Court either dismiss them from this action or, alternatively, compel a more definite statement from Plaintiffs due to the imprecise nature of Plaintiffs' pleading. Guided by the principle that Rule 12(b)(6) dismissal is disfavored, and that it should be granted only in circumstances where it "appears beyond a doubt that the plaintiff can prove no set of facts" that would entitle him to relief the Court declines to dismiss these Defendants from this lawsuit on grounds of indefinite pleading. See Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).² The question, then, is whether Defendants' are entitled to a more definite statement under Rule 12(e).

Pursuant to Federal Rule of Civil Procedure 12(e), a party may move for a more definite statement "[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading...." Fed.R.Civ.P. 12(e). While the requirements of pleading under the Federal Rules are "liberal," and a litigant need not "allege a `specific fact' to cover every element or allege `with precision' each element of a claim[,]" see Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.2001), a pleader must at least provide his opponent with "fair notice of what [his] claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. 99, 2 L.Ed.2d 80. Stated differently, a plaintiff should include in his pleading some brief factual description of the circumstances surrounding the acts or omissions upon which he bases his claim for relief. See Williams v. Lear Operations Corp., 73 F.Supp.2d 1377, 1381 (N.D.Ga.1999) (holding that plaintiff's failure to provide any factual description of "when, where or how" she suffered unlawful treatment rendered her pleading inadequate even under liberal notice pleading standards). In multiparty litigation, moreover, the Federal Rules do not permit a party to aggregate allegations against several defendants in a single, unspecific statement, but instead require the pleader to identify (albeit generally) the conduct of each defendant giving rise to his claims. See Veltmann v. Walpole Pharmacy, Inc., 928 F.Supp. 1161, 1164 (M.D.Fla.1996).

In the instant case, Defendants bemoan several areas of imprecision in Plaintiffs' pleading. While many of Defendants' complaints appear to misapprehend the level of detail necessitated by the Federal Rules, the Court finds at least some of the omissions in Plaintiffs' pleading leave Defendants without "fair notice" of the claims being asserted against them.

First, the Court finds that the Complaint does not give each Defendant "fair notice" of the role it or its product is alleged to have played in causing Plaintiffs' injuries. Plaintiffs state broadly that Defendants were "manufacturers," "fabricators," "distributors," "seller[s]," "machiners," or "users" of beryllium-containing products sold to and used at the Lockheed Marietta facility. (Compl.¶¶ 15-16.) Moreover, they claim to have been exposed to respirable beryllium dust "as a ......