Ramirez Pomales v. Becton Dickinson & Co., SA

• Decision Date: 03 October 1986
• Docket Number: Civ. No. 78-2327 HL.
• Citation: 649 F. Supp. 913
• Parties: Awilda RAMIREZ POMALES, et al., Plaintiffs, v. BECTON DICKINSON & COMPANY, S.A., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

649 F. Supp. 913

Awilda RAMIREZ POMALES, et al., Plaintiffs, v. BECTON DICKINSON & COMPANY, S.A., et al., Defendants.

Civ. No. 78-2327 HL.

United States District Court, D. Puerto Rico.

September 24, 1986.

On Motion for Directed Verdict October 3, 1986.

COPYRIGHT MATERIAL OMITTED

Ernersto Maldonado Perez, Maldonado & Ortiz, San Juan, P.R., Santurce, P.R., Carlos A. Ortiz Morales, Santurce, P.R., for plaintiffs.

Ernesto Rodriguez Suris, Miranda Cardenas, Otero, De Corral & Rodriguez, Old San Juan, P.R., Brian P. Mullen, New York City, for defendants.

Paul E. Summit, Orans, Elsen & Lupert, New York City, for Fairleigh S. Dickinson, Jr.

OPINION AND ORDER

LAFFITTE, District Judge.

Plaintiffs, approximately seventy five individuals, are Puerto Rico residents and former employees of a thermometer manufacturing plant in Juncos, Puerto Rico operated by various subsidiaries of Becton Dickinson and Co.¹ Plaintiffs filed this diversity action against defendants; Becton Dickinson and Co. ("BD"), a New Jersey corporation and parent company of the subsidiaries operating the thermometer plant in Juncos, Puerto Rico, and Wesley Howe, director and officer of BD. Plaintiffs claim defendants negligently failed to provide a safe work environment at the thermometer plant.

Defendants have filed a Motion for Summary Judgment claiming Howe in his capacity as BD director and officer lacked sufficient personal involvement with safety procedures at the Juncos plant to be liable for negligence and BD is a "statutory employer" immune from liability pursuant to Puerto Rico's Workmen's Compensation laws or, alternatively, BD had no duty to provide a safe work environment at the Juncos plant cannot be held liable for negligence. Defendants have also filed a Motion for Partial Summary Judgment on the grounds that various plaintiffs are barred from suit by the statute of limitations. We find there remains a question of material fact as to the liability of Howe and BD for negligence and DENY the Motion for Summary Judgment. The Motion for Partial Summary Judgment is GRANTED.

I. FACTS

Since 1958, BD as parent company, created various subsidiary companies to operate the thermometer manufacturing plant in Juncos, Puerto Rico. From 1958 to 1964 the plant was operated by Becton Dickinson & Co., S.A. ("BDSA"), from 1964 to 1978 by Becton Dickinson of Puerto Rico, Inc. ("BDPR") and B-D Thermometer Company ("BDTC") (collectively the subsidiary companies are herein referred to as "BDPR"). Plaintiffs were employed at the Juncos plant for various lengths of time from the plant opening in 1958 through the early 1970s.

BDPR is directed by a local manager, a production manager, a plant engineer, and various supervisors. The local manager reports directly to a BD director or officer. From 1960 to the beginning of 1965 the BDPR plant manager reported to Wesley Howe, who at that time served as a BD director and BDPR officer. In January, 1965 Howe was given a promotion within BD and was no longer the person to whom BDPR management reported. Nonetheless, Howe remained an officer of BDPR until 1978 and continued to receive reports about the operations of the Juncos plant.

Initial operations at the BDPR plant in Juncos were limited to engraving thermometers. The plant would receive thermometers already filled and sealed with mercury. Plant employees would then mark the thermometers with an engraved scale and the Becton Dickinson trademark. In 1962 BD began preparations to expand the Juncos plant to include the actual manufacture of thermometers. By 1964 the thermometer manufacturing process had been transferred to Juncos from a BD plant in Columbus, Kansas. In 1965 a construction project was undertaken at the plant to better accommodate the manufacturing of thermometers.

Following the construction project, in 1966, the safety of the Juncos plant came under suspicion when a sequence of employees reported to the State Insurance Fund and were hospitalized and diagnosed with mercury poisoning.² The plant was investigated by Dr. Arnaldo Roldán, Director of the Occupational Health Division of the Commonwealth Department of Health, who threatened to shut it down.³ In response to the situation, Howe and other BD officials sent Joseph Schanel, head of BD's Safety Engineering Department, and Dr. Horace Gerarde, BD's medical director to investigate the plant.⁴ BD also hired Dr. Morton Corn as a consultant to evaluate the situation and make recommendations.⁵ In 1967, local BDPR management, with the aid of Dr. Gerarde and Dr. Roldán, began to implement the safety recommendations made in Dr. Corn's report.

Plaintiffs claim they have been permanently injured by over exposure to mercury resulting in mercury poisoning. Mercury poisoning can result in decreased muscle coordination, trembling throughout the body, inflammation of the gums, emotional instability and miscarriages in pregnant women.

Defendants' Motion for Summary Judgment raises the issue whether either BD or Wesley Howe had a duty, or created a duty, to provide a safe working environment at the Juncos plant, and, if such a duty existed, were they negligent in their performing the duty.

II. WHETHER BD, AS A PARENT COMPANY OF BDPR, AND HOWE AS OFFICER AND DIRECTOR OF THE PARENT COMPANY HAVE A DUTY TO PROVIDE A SAFE WORKING ENVIRONMENT AT BDPR.

Plaintiffs' claim of negligence against defendants is governed by the damages provision of the Puerto Rico Civil Code, Article 1802, and Puerto Rico's Workmen's Compensation laws, 11 L.P. R.A. 1 et seq. See Erie Railroad v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (when state law governs a diversity action in federal court). Article 1802 of the Civil Code, 31 L.P.R.A. sect. 5141, provides:

A person who by act or omission causes damages to another through fault or negligence shall be obliged to repair the damage so done.

To state a claim for negligence under this provision of the Civil Code a plaintiff must establish three elements: 1) a negligent or wrongful act or omission, 2) proof of damages, and 3) a causal relationship between the damage and the action or omission of another person. Hernandez v. Fournier, 80 P.R.R. 94, 96-97 (1957).⁶

Unlike the prima facie case for a tort claim at common law which requires plaintiff to establish a duty on the part of defendant, a plaintiff claiming damages under civil law is not required to prove a duty as an essential element of the claim.⁷ In this case, however, plaintiffs must establish a specific duty on the part of BD and Howe in order to make out a claim for negligence against them. Proof of a duty is required here because plaintiffs' claim is against third party defendants rather than BDPR, their direct employer, and because their claim is governed not only by the Civil Code provision for damages, but also by Puerto Rico's Workmen's Compensation laws, 11 L.P.R.A. sects. 1 et seq.

The direct employer has a nondelegable duty to provide its employees with a safe work environment. 29 L.P.R.A. sect. 361e; Barrientos v. Government of the Capital, 97 P.R.R. 539 (1969); Muñiz v. National Can, 737 F.2d 145 (1st Cir.1984); see also, Love v. Flour Mills of America, 647 F.2d 1058 (10th Cir.1981). In addition, employers operating in Puerto Rico are required to contribute to employee insurance through the Commonwealth State Insurance Fund. The Workmen's Compensation law provides that an employee injured on the job is automatically entitled to compensation from the State Insurance Fund without proving fault by the employer. 11 L.P. R.A. sect. 2, 2a, 3, 4a. In exchange for contributing to this no-fault insurance, employers are protected from unlimited liability. The Workmen's Compensation law limits the amount an injured employee may recover and provides that compensation through the State Insurance Fund is the employee's exclusive remedy. 11 L.P.R.A. sect. 21; see Ruiz Diaz v. Vargas Reyes, 109 D.P.R. 761 (1980).

In order to uphold the law and further the policy of the Workmen's Compensation law an employee who chooses to sue the parent company or officer for negligence rather than filing a workmen's compensation claim against the direct employer, must show that the parent company or officer owed the employee a specific duty and was negligent in performing that duty. Muñiz v. National Can Corp., 737 F.2d 145 (1st Cir.1984); Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902 (1st Cir.1980); Santiago v. Becton Dickinson, 571 F.Supp. 904 (D.P.R.1983); see 11 L.P. R.A. sect. 31 (third party liability). A parent corporation may be liable for unsafe working conditions at the subsidiary only if the parent assumed a duty to act by affirmatively undertaking to provide a safe working environment at the subsidiary. National Can, supra, at 148. Such an undertaking may be express as by contract between parent and the subsidiary, or may be implicit in the conduct of the parent. Id. A corporate officer may be found liable only if he or she had direct personal involvement in a decision or action which is causally related to plaintiff's injury. Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902 (1st Cir.1980).⁸ Corporate officers have been found personally liable in situations where they directed, sanctioned, or actively participated in the challenged corporate activity. Id.; Lobato v. Pay Less Drug Stores, 261 F.2d 406, 408-409 (10th Cir.1958); Marks v. Polaroid Corp., 237 F.2d 428, 435 (1st Cir.1956).

This court-made rule, restricting suit against a third party parent company, prevents the demise of the Workmen's Compensation scheme. Without the rule requiring a showing of a specific duty on the part of the parent company, an employee could by-pass the exclusive remedy provision of the Workmen's Compensation law and hold the parent company to unlimited liability; the employee's direct employer could, with impunity, shift the burden of maintaining a safe working environment to the parent company; and subsidiary...