Sarocco v. General Elec. Co., Civ. A. No. 94-30136-MAP.

• Citation: 879 F. Supp. 156
• Decision Date: 30 March 1995
• Docket Number: Civ. A. No. 94-30136-MAP.
• Parties: Rosemary J. SAROCCO, as Administratrix of the Estate of Phillip V. Sarocco, and individually, Albert T. Hopper, Ethel Speranzo and Nicholas Speranzo, Plaintiffs, v. GENERAL ELECTRIC COMPANY and Monsanto Company, Defendants.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

879 F. Supp. 156

Rosemary J. SAROCCO, as Administratrix of the Estate of Phillip V. Sarocco, and individually, Albert T. Hopper, Ethel Speranzo and Nicholas Speranzo, Plaintiffs, v. GENERAL ELECTRIC COMPANY and Monsanto Company, Defendants.

Civ. A. No. 94-30136-MAP.

United States District Court, D. Massachusetts.

March 30, 1995.

COPYRIGHT MATERIAL OMITTED

William B. Barry, Pittsfield, MA, Sidney B. Silverman, Gregory E. Keller, New York City, for Rosemary J. Sarocco, Albert T. Hopper, Plaintiff, Ethel Speranzo, Plaintiff, Nicholas Speranzo.

Joseph G. Blute, Daniel J. Gleason, Nutter, McClennen & Fish, Boston, MA, Robert J. Shaughnessy, Steven R. Kuney, Williams & Connolly, Washington, DC, for General Elec. Co.

John A.K. Grunert, Richard P. Campbell, Campbell & Associates, P.C., Boston, MA, for Monsanto Co.

MEMORANDUM REGARDING DEFENDANT GENERAL ELECTRIC'S MOTION TO DISMISS

(Docket No. 26)

PONSOR, District Judge.

I. INTRODUCTION

The plaintiffs are retired workers and the families of deceased employees who manufactured electrical transformers at a General Electric Company facility in Pittsfield, Massachusetts. The defendants are General Electric Company ("GE") and Monsanto Company ("Monsanto").

According to the complaint, former workers at the Pittsfield GE facility contracted various cancers and other illnesses from prolonged workplace exposure to a number of known, deadly carcinogens — Arcolor, Pyranol and certain other epoxies containing polychlorinated biphenyls (PCBs), polychlorinated dibenzofurans (PCDFs) or trichlorobenzenes — all manufactured by Monsanto. Plaintiffs are careful to explain that they are not seeking damages for their initial workplace exposure to these toxins. They readily admit that their exclusive remedy for these injuries is under the administrative scheme set forth in the Massachusetts Workers Compensation Act, Mass.Gen.L. ch. 152, § 24.

Instead, plaintiffs contend that GE's medical personnel intentionally misinformed and negligently advised workers as to the need for serious treatment of symptoms resulting from exposure to these chemicals. Plaintiffs allege that as a result of the fraudulent misrepresentation by G.E.'s medical personnel, their conditions went unattended causing them serious harm, including in some cases death.

General Electric has moved for dismissal of the complaint based on the exclusivity by the Massachusetts Workers Compensation Act. Mass.Gen.L. ch. 152, § 24.

Plaintiffs respond that the intentional and fraudulent concealment of the consequences of workplace exposure to toxins constitutes a cognizable claim separate and apart from the workers' compensation scheme. Conceding no authority directly on point in Massachusetts, they point to decisions from other state jurisdictions that permit actions based on allegations very similar to those set forth by the plaintiffs here.

Whatever the approach in other jurisdictions, this court must conclude that the provisions of Mass.Gen.L. ch. 152 and controlling Massachusetts precedent compel dismissal of all claims against GE. The court's reasons are set forth below.

II. FED.R.CIV.P. 12(B)(6)

The appropriate inquiry on a motion to dismiss is whether, based on the allegations of the complaint, the plaintiffs are entitled to offer evidence in support of their claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Therefore, the court must accept as true all the factual allegations set forth in the complaint and draw all reasonable inferences in favor of the plaintiffs. Bergeson v. Franchi, 783 F.Supp. 713 (D.Mass.1992) (citing Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990)). If under any theory the complaint is "sufficient to state a cause of action in accordance with the law, a motion to dismiss the complaint must be denied." Knight v. Mills, 836 F.2d 659, 664 (1st Cir.1987); accord Cuddy v. Boston, 765 F.Supp. 775, 776 (D.Mass.1991).

III. THE COMPLAINT

The complaint sets forth the single claim of breach of fiduciary duty by GE's in-house physicians and other medical personnel. The facts alleged are as follows.

For decades, industrial workers were routinely exposed to deadly PCBs, PCDF's and other toxic compounds typically used in the manufacture and repair of electrical transformers at General Electric's Pittsfield facility (hereinafter the "Plant"). Plaintiffs detail above normal rates of leukemia and intestinal and bladder cancer among retirees from GE's Pittsfield facility. Chloracne, later developing into deadly skin cancers, plagued many workers and retirees who routinely handled chemicals without the benefit of gloves, safety equipment or protective clothing. The averments summarize the results of numerous scientific studies which conclude that the alarming rate of severe health problems among GE workers at the transformer Plant was directly caused by exposure to these toxins.

Plaintiffs allege that GE and Monsanto made a concerted effort to convince workers that their health problems were unrelated to exposure to PCB's and PCDF's. As far back as 1936, it is alleged that GE knew that workers should be screened for sensitivity to Pyranol and that adverse skin-reactions to Pyranol were often accompanied by liver damage. Despite GE's knowledge of these dangers, workers who complained about and sought treatment for Pyranol-related skin ailments were told that the condition was no more serious than ordinary acne and that with continued exposure they would develop resistance to the chemicals. In short, according to plaintiffs, physicians who worked in the Pittsfield plant infirmary told workers that exposure to Pyranol was not dangerous and that there was no grounds for them to be concerned about their health.

Eventually, GE performed tests to determine the level of PCB's in workers' blood streams. Plaintiffs say these test results were kept secret and, consequently, workers were prevented from receiving adequate treatment for the myriad symptoms and illnesses that resulted from exposure to these toxic chemicals. It is further alleged that GE made false statements to the Massachusetts Departments of Public Health and Labor and Industries in order to conceal the high rates of cancer among plant workers exposed to Pyranol and other PCB-laden chemicals.

Plaintiffs contend that the claims of the Estate of Phillip Sarocco and of Ethel Speranzo are typical of the class of persons on whose behalf this suit has been brought. Sarocco worked in the transformer repair section of the GE plant from 1963 until 1986. He developed bladder cancer in 1986 and retired. By 1990, the cancer had metastasized, infecting the lungs and bone. Sarocco died of cancer in 1993.

Sarocco was routinely exposed to Pyranol in the course of his employment. His autopsy revealed that his PCB level, seven years after his last exposure to Pyranol, was 2,200 parts per billion — twice the level in the general population.

Ethel Speranzo worked at the GE facility in Pittsfield from 1962 to 1986. She used epoxy resins in the construction of voltage regulators and small transformers. The section of the plant she worked in had been contaminated by Pyranol due to spills and leakages that first occurred in the 1930's. In this area, workers routinely heated their lunch in ovens used to bake and cure the epoxy-laden transformers. Until 1985 there was no sink for hand washing in this portion of the plant. No warnings about the danger of these chemicals were given to employees. Ethel Speranzo has suffered from skin cancer for twenty-five years. She also has ovarian and breast cancer that has required a hysterectomy and a double mastectomy.

Plaintiffs contend that throughout the course of their employment, the infirmary physicians consistently placed GE's financial interest above the interests of the workers as their patients. Plaintiffs claim that this course of conduct amounts to fraudulent misrepresentation and constitutes a breach of fiduciary duty by GE-employed physicians.

IV. DISCUSSION

The allegations pose the following legal issue: Does the Massachusetts Workers' Compensation Act, Mass.Gen.L. ch. 152, § 1 et seq. (the "Act" or ch. 152), provide the sole remedy for workplace injuries resulting from an employer's fraudulent misrepresentations that conceal the nature and extent of workrelated illnesses, thereby depriving employees of medical treatment and further aggravating their illnesses? It is a question of first impression in this jurisdiction. Fortunately, well-reasoned decisions of the Massachusetts' appellate courts, the "ultimate expositors of state law," provide a clear path for this court to follow in making its ruling. Woods v. Friction Materials, 30 F.3d 255, 263 (1st Cir.1994).

A. Mass.Gen.L. ch. 152: The Massachusetts Workers' Compensation Act

Chapter 152 affords broad protection to employees injured at work. Kelly's Case, 17 Mass.App. 727, 729, 462 N.E.2d 348 (1984). In accordance with the Act's legislative design, Massachusetts courts have liberally construed the term "personal injury," as defined in Mass.Gen.L. ch. 152, § 1, and the concept "arising out of and in the course of employment" contained in Mass.Gen.L. ch. 152, § 26. See Id.; L. Locke, Massachusetts Workmen's Compensation, 2d (Practice Series Vol. 29) §§ 25 and 26 (1968).

Under Massachusetts law, there is no qualification that an on-the-job injury be accidental in order to receive workers' compensation. Zerofski's Case, 385 Mass. 590, 592, 433 N.E.2d 869 (1982). Intentional conduct by an employer which causes injury is covered by the Act. Foley v. Polaroid Corporation, 381 Mass. 545, 413 N.E.2d 711 (1980). Moreover, injuries attributable in part to pre-existing conditions are compensable under the Act if aggravated by a workplace accident that results in disability. See Madden's Case, 222 Mass. 487, 111 N.E. 379 (1916). Compensation is provided whether the work-related disability results from a physical...