Santiago v. Becton Dickinson & Co., SA

• Decision Date: 14 September 1983
• Docket Number: Civ. No. 78-1603CC.
• Citation: 571 F. Supp. 904
• Parties: Ana M. SANTIAGO, Edna Ivette Santiago, a/k/a Edna Ivette Torres, Ricardo Martinez Santiago, a/k/a Ricardo Torres, Plaintiffs, v. BECTON DICKINSON & CO., S.A. and/or Becton Dickinson & Co., Inc. and/or Becton Dickinson & Co. and/or Becton Dickinson and/or American Cyanamid Co., and Farleigh S. Dickinson, Jr.; Henry P. Becton; Wesley J. Howe; Marvin Asnes; Benedict T. Harter; Henry A. Suplee and Raymond P. Ohmuller, Defendants.
• Court: U.S. District Court — District of Puerto Rico

571 F. Supp. 904

Ana M. SANTIAGO, Edna Ivette Santiago, a/k/a Edna Ivette Torres, Ricardo Martinez Santiago, a/k/a Ricardo Torres, Plaintiffs, v. BECTON DICKINSON & CO., S.A. and/or Becton Dickinson & Co., Inc. and/or Becton Dickinson & Co. and/or Becton Dickinson and/or American Cyanamid Co., and Farleigh S. Dickinson, Jr.; Henry P. Becton; Wesley J. Howe; Marvin Asnes; Benedict T. Harter; Henry A. Suplee and Raymond P. Ohmuller, Defendants.

Civ. No. 78-1603CC.

United States District Court, D. Puerto Rico.

September 12, 1983.

Opinion on Second Motion to Dismiss September 14, 1983.

COPYRIGHT MATERIAL OMITTED

Ricardo R. Pérez-Pietri, Santurce, P.R., for plaintiffs.

Ernesto F. Rodriguez-Surís, Miranda Cardenas, De Corral & Rodriguez, San Juan, P.R., for Becton Dickinson & Co., Messrs. Becton, Howe, Asnes, Harter, Ohmuller, Dickinson and Suplee.

Eduardo R. Estrella, Fiddler, Gonzalez & Rodriguez, San Juan, P.R., for defendant American Cyanamid Co.

OPINION AND ORDER

CEREZO, District Judge.

On February 18, 1983, Becton Dickinson & Co., and the individual corporate officers Farleigh S. Dickinson, Jr., Henry P. Becton, Wesley J. Howe, Marvin Asnes, Benedict T. Harter, Henry A. Suplee and Raymond P. Ohmuller filed a Motion to Dismiss for lack of personal jurisdiction, subsequently supplemented by affidavits subscribed by the individual defendants asserting their lack of contacts with Puerto Rico and absence of personal participation by them in any conduct or action causing plaintiffs' injury. The individual corporate officers allege in their affidavits that, although they were either officers or directors of Peg Bandage, Inc., plaintiffs' employer in Puerto Rico since 1973, they did not have any "specific function or responsibilities" or "any operating or administrative functions" regarding their positions in the Puerto Rico corporation.¹ These non-resident defendants contend that their visits to Puerto Rico were not in connection with the matters set forth in the complaint. Becton Dickinson & Co., in turn, rests on the recent opinion issued by our Circuit in Amalbert v. Becton Dickinson & Company, S.A., 705 F.2d 440 (1st Cir.1983) urging that it is dispositive of plaintiffs' claim against it for lack of personal jurisdiction. Spiced here and there in the arguments of all movants are references to the lack of merits of the complaint. They further contend that as corporate officers and as a corporate entity they owed plaintiffs no duty to provide a safe working place and that they were in no position to remedy the unsafe working environment claimed. Their last argument for dismissal is that the liability charged is based on tortious acts committed outside of Puerto Rico which are not subject to Puerto Rico's long-arm statute which reaches only tortious acts committed within Puerto Rico.² Without submitting any sworn statements, and/or verified or otherwise authenticated documents plaintiffs counter the dismissal motion by referring to nothing else but the allegations of their complaint. Most of these allegations link Becton Dickinson & Co.'s responsibility and that of the individual corporate defendants to the duty to supervise plaintiffs' work environment and to remedy any unsafe conditions present in that environment that the use of the toxic dye may have created. This duty, as paraphrased in the allegations, is essentially based on Becton Dickinson & Co. being the parent corporation of Peg Bandage, Inc. and thus dominating the activities of the latter and on the positions of control and supervision allegedly held by the individual officers of Becton Dickinson & Co. The liability of the corporate officers, however, is also premised on their personal knowledge or duty to know that the dye was toxic, on their participation in introducing the toxic dye to plaintiffs' work environment at the Las Piedras plant and on their failure to take any steps to curtail its potentially dangerous effects.³ There is no reference, however, either in the affidavits or in the motion to dismiss touching on these allegations of the amended pleading.

In the present case, the only "new" circumstance that could arguably be said to justify departure from the previous rulings on personal jurisdiction is the Amalbert v. Becton Dickinson & Co., decision. An examination of this decision does not convince us that the previous rulings were clearly erroneous at least with regard to the corporate officers-directors codefendants and their alleged personal liability. Said circumstance, without more, does not move us to revise our previous finding of personal jurisdiction on these defendants, especially considering the belatedness of the request and the fact that codefendants have already appeared on many occasions during the litigation and availed themselves of the court's procedures. See e.g.: Insurance Corp. of Ireland v. Compagnie, 456 U.S. 694, 102 S.Ct. 2099 at 2105, 72 L.Ed.2d 492 (1982).

The Amalbert case is helpful in the analysis of plaintiffs' action against the parent corporation Becton Dickinson & Co. Amalbert was an action for damages caused by mercury intoxication brought against the parent corporation of a Puerto Rico based pharmaceutical corporation. Plaintiffs were workers at the Puerto Rico plant who claimed they were intoxicated with mercury at the factory during the course of their employment. Their Puerto Rico employer was insured under the Puerto Rico Workmen's Compensation Act, P.R.Laws Ann. Tit. 11, Sec. 1, et seq. (PRWACA) and thus immune from suit by its employees for employment-related accidents. P.R.Laws Ann.Tit. 11, Sec. 21, 32. In meeting the challenge to personal jurisdiction made by the parent corporation, plaintiffs argued that it provided its subsidiary with operating manuals, paid the salary of certain employees and was enriched by the local operation. The Circuit Court rejected these allegations as supportive of jurisdiction stating:

Such activities fail, however, to establish B.D. & Co.'s day-to-day control of the subsidiary's operation. Moreover we recognized in Escudé Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902 (1980) that a showing of domination by a nonresident parent sufficient to establish in personam jurisdiction would defeat the plaintiffs' substantive claim. Id. at 906. If plaintiffs demonstrate that the corporate identity of B.D. & Co. has merged with that of its subsidiary, the exclusive remedy provision of the Act P.R. Workmen's Compensation Act would immunize B.D. & Co. — as plaintiffs' employer in fact — from suit for injuries occurring in the course of employment.

Slip Op. at page 2. In Amalbert, the Court was viewing the issue of personal jurisdiction tangentially to the determination of the parent corporation's liability. Discarding the separate corporate identity of the parent corporation because of its domination of the local subsidiary employer, inevitably leads to the conclusion that the parent corporation was the real employer and, as such, immunized by the PRWACA. What is indeed important to note is that, in Amalbert, the parent corporation was brought to the action solely for acts that were related to liability based on an employer-employee relationship. See contra: Ayuso Mangual v. General Battery Corp., 710 F.2d 15 (1st Cir.1983). This situation should be distinguished from the statutory employer doctrine which does not require piercing of corporate identities yet extends the PRWACA employer immunity to third parties who subcontract some aspects of the employment activity and who also maintain an employer-employee status with the injured worker. See: Ruiz Díaz v. Vargas Reyes, 109 PRR ___, 109 DPR 761, 764-65 (1980) and Lugo Sánchez v. Puerto Rico Water Resources Authority, 105 PRR 1015, 1017-21 (1974). We do not read Amalbert as eroding either the exceptions to the statutory employer immunity for acts performed by third parties unrelated to the employer-employee relationship, See: id. and P.R. Laws Ann.Tit. 11, Sec. 32; Lusson v. Carter, 704 F.2d 646 at 651-652 (1st Cir.1983); López Rodríguez v. Delama, 102 PRR 319, 323-24 (1974), or the doctrine that recognizes the liability of corporate officers or directors in their personal capacity for their negligent acts or omissions, see: id. and Escudé Cruz v. Ortho, at 907.

In the present action, Becton Dickinson and Co.'s liability is premised on its alleged control and dominance of the working activities of the subsidiary. Pursuant to the holdings of Amalbert and Escudé Cruz this parent corporation, inasmuch as its liability is akin to that of its subsidiary, can avail itself of the immunity afforded by PRWACA to its subsidiary as an employer and the action against it cannot proceed.

Regarding the individual corporate officers, many of the allegations against them rest on a liability stemming from the duties of a corporate officer or director regarding acts of the corporation which would also be immunized under the doctrine of limited corporate liability. There are, however, a few allegations against the individual defendants which at this stage, unless adequately controverted, must be taken as true. These seem to portray an action in tort based on the corporate officers/directors' ordinary civil liability premised on their alleged knowledge of the dangerous characteristics of the dye, of its use in proximity to persons (or duty to have known this) and their failure to take the appropriate steps, despite such knowledge, to curtail its potential for causing harm to others. These allegations, which take on the semblance of an action in tort⁴ based on general principles of civil liability, Article 1802 of our Civil Code, P.R.Laws Ann. Tit. 31, Sec. 5141 (i.e.: foreseeability, reasonable man standard, causation,) have been totally eschewed by the individual defendants. If plaintiffs can establish that defendants knew, or had reason to know, or should have known that the dye was dangerous⁵ and that, nevertheless, they took no...