Santana v. Zilog, Inc.

• Decision Date: 23 February 1995
• Docket Number: No. CIV 94-087 S MHW.,CIV 94-087 S MHW.
• Parties: Jodene M. SANTANA and Michael Santana, et ux., Plaintiffs, v. ZILOG, INC., a California corporation, and John Does 1 through 5, Defendants.
• Court: U.S. District Court — District of Idaho

878 F. Supp. 1373

Jodene M. SANTANA and Michael Santana, et ux., Plaintiffs, v. ZILOG, INC., a California corporation, and John Does 1 through 5, Defendants.

No. CIV 94-087 S MHW.

United States District Court, D. Idaho.

February 23, 1995.

David R. Lombardi, Julie Klein Fischer, Givens Pursley & Huntley, Boise, ID, for plaintiff.

Gerald T. Husch, Steven R. Thomas, Patricia M. Olsson, Moffatt, Thomas, Barrett, Rock & Fields, Boise, ID, for defendant.

MEMORANDUM OPINION AND ORDER

WILLIAMS, United States Magistrate Judge.

Plaintiffs bring this diversity action for wrongful death, alleging that chemicals used in the manufacturing process at Defendants' computer chip facility caused Defendants' employee, Plaintiff Jodene Santana, to miscarry on six separate occasions. Defendants have filed two motions to dismiss under Rule 12(b)(6) Federal Rules of Civil Procedure. Defendant's first Motion to Dismiss is on the grounds that Idaho's wrongful death statute, Idaho Code § 5-311 does not recognize a cause of action for the wrongful death of a non-viable fetus. Defendants' Second Motion to Dismiss is made on the grounds that, assuming the existence of such a cause of action, Idaho's worker's compensation scheme preempts any tort claim for wrongful death in this instance.

Plaintiffs have responded to both motions and have asked for certification of these issues to the Idaho Supreme Court. For the reasons set forth below, I hold (1) that certification to the Idaho Supreme Court is inappropriate; (2) that under Idaho Code § 5311 viability marks the beginning of legal personhood and the corresponding right to assert a cause of action for the wrongful death of an unborn fetus is limited to cases involving the death of a viable fetus; and (3) that determination of the preemptive effect of Idaho's workers compensation scheme is not necessary to resolve this case. Accordingly, Defendants' First Motion to Dismiss is GRANTED.

I BACKGROUND

Plaintiffs Jodene M. Santana and Michael Santana ("Santanas") are husband and wife and were, at all times relevant to the events at issue, residents of Canyon County, Idaho. Defendant Zilog Inc. ("Zilog") is a California corporation engaged in the manufacture of computer chip components with its principal place of business in Nampa, Idaho. Defendants John Does 1 through 5 are persons, corporations, or other entities who provided materials, information, or other services to Zilog.

Jodene Santana has been employed by Zilog, Inc., since August 19, 1988. She has generally been assigned to work in the area commonly referred to as the "fab." Jodene Santana alleges that while working in the fab, she was exposed to chemicals which had an adverse effect on her reproductive health. She further alleges that Zilog knew or should have known of the dangerous nature of these chemicals.

During the time she was employed by Zilog, Jodene Santana had the severe misfortune to suffer six miscarriages. She became pregnant in December of 1988 and miscarried in February 1989 when the fetus was approximately seventeen-weeks old.¹ In September of 1989 she again became pregnant and this fetus was lost in November of 1989.

The next pregnancy occurred in January 1991. Jodene Santana alleges that she asked her supervisor to be assigned to a different area where she would not be exposed to chemicals which she believed were preventing her from coming to full term. Jodene Santana alleges that she was advised by her supervisor that the chemicals in use in the fab presented no risk of harm to her or the unborn fetus, and that she could take a leave of absence upon the request of her physician. In February of 1991, Jodene Santana miscarried for the third time.

Jodene Santana became pregnant a fourth time in May of 1991 and, upon learning that she was pregnant, obtained a request from her physician that she be allowed to take a leave of absence, which was granted. In June of 1991 Jodene Santana experienced another miscarriage. She became pregnant a fifth time in November of 1991. Again she was granted a leave of absence at the request of her physician. She lost this fetus in January of 1992 when it was approximately fourteen to fifteen weeks old.

In February 1993, Jodene Santana became pregnant a sixth time. In March of 1993, Jodene Santana suffered another miscarriage after approximately eight weeks of gestation. It is undisputed that the longest period of gestation for any of the pregnancies that ended in a miscarriage was seventeen weeks.

On January 19, 1994, Plaintiffs filed a Complaint in the District Court of the Third Judicial District of the State of Idaho. This Complaint brought the following state law causes of action against the Defendants for personal injury and wrongful death, specifically alleging: (1) Count One for negligence; (2) Count Two for failure to warn; and (3) Count Three for battery. Plaintiffs ask for compensatory damages for the payment of medical expenses for the death of Plaintiffs' fetuses and the loss of their aid, comfort, and society and support, and for Plaintiffs' costs and reasonable attorney fees. On March 1, 1994, the case was removed to Federal Court. 28 U.S.C. § 1332.

II DISCUSSION AND ANALYSIS

A. Certification to the Idaho Supreme Court is Not Appropriate

The Santanas urge the Court to certify this case to the Idaho Supreme Court for a declaratory ruling on the legal issues raised in Zilog's two motions to dismiss.² Because this is a diversity action, the Erie doctrine requires this Court to apply Idaho law to resolve any questions of substantive law presented by the Motions to Dismiss. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Thus, an authoritative holding from the Idaho Supreme Court would settle the questions of whether viability is a prerequisite to filing suit for the wrongful death of a fetus and whether such a wrongful death action is preempted by worker's compensation under these circumstances. Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967).

No Idaho Court has squarely considered the issues presently before the Court; however, this Court is not without related Idaho Supreme Court authority which gives guidance on how the Idaho Supreme Court would decide these questions. Burns v. International Ins. Co., 929 F.2d 1422 (9th Cir.1991). Accord Hon v. Stroh Brewery Co., 835 F.2d 510, 512 (3rd Cir. 1987); Wilson v. Asten-Hill Mfg. Co., 791 F.2d 30 (3rd Cir.1986). In addition, in prognosticating how the highest court in a state would decide a particular issue, a federal court may "look to other state-court decisions, well-reasoned decisions from other jurisdictions, and any other available authority to determine the applicable state law." Burns, 929 F.2d at 1424. Accord McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 663 (3rd Cir.1980), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980). Despite the Santanas' arguments to the contrary, ample indications exist as to how the Idaho Supreme Court would resolve these issues. Because of the well developed law in this area throughout the United States, I am convinced that certification to the Idaho Supreme Court is unnecessary and would only serve to delay a decision in this action.

B. Standard for a Motion to Dismiss

Defendants have moved for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure which allows for a court to dismiss a complaint, prior to the filing of an answer, if it finds that the complaint fails to state a cause of action upon which relief can be granted. When the court is testing the sufficiency of the claims for relief, the complaint should be construed in a light most favorable to the plaintiff and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Church of Scientology v. Flynn, 744 F.2d 694, 696 (9th Cir.1984). The complaint need not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Reddy v. Litton Indus., 912 F.2d 291, 293 (9th Cir.1990), cert. denied, 502 U.S. 921, 112 S.Ct. 332, 116 L.Ed.2d 272 (U.S.1991); York v. Story, 324 F.2d 450 (9th Cir.1963), cert. denied, 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659 (1964). The issue is not whether the plaintiff will ultimately prevail or is likely to prevail, but whether the plaintiff is entitled to offer evidence to support the claim. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

C. Idaho Law Requires that a Fetus be Viable Before a Cause of Action for Wrongful Death May Arise

The Complaint does not allege that the fetuses in question were viable at the time of each of the miscarriages. In their response to the First Motion to Dismiss, the Plaintiffs have not argued that a factual dispute would exist as to whether the fetuses were viable since seventeen weeks was the longest pregnancy. The position of the parties on this point is in accordance with well established law.

The most recent United States Supreme Court decision in this area is Planned Parenthood v. Casey, ___ U.S. ___, ___, 112 S.Ct. 2791, 2817, 120 L.Ed.2d 674 (1992) (opinion of O'Connor, Kennedy, and Souter, JJ) (The point at which "there is a reasonable possibility of maintaining and nourishing a life outside the womb" is the point at which an unborn fetus becomes viable.); Roe v. Wade, 410 U.S. 113, 160, 93 S.Ct. 705, 730, 35 L.Ed.2d 147 (1973) (Viability is the point at which the fetus is potentially able to live outside the mother's womb, albeit with artificial aid); Webster v. Reproductive Health Services, 492 U.S. 490, 554, 109 S.Ct. 3040, 3076 n. 9, 106 L.Ed.2d 410 (1989) (fetal viability no earlier than 23-24 weeks). Accord Ferguson v. District of Columbia, 629 A.2d 15 (D.C.1993) (Earliest point at...