Zurbriggen v. Twin Hill Acquisition Co.
| Decision Date | 22 April 2020 |
| Docket Number | No. 17 C 05648,17 C 05648 |
| Citation | 455 F.Supp.3d 702 |
| Parties | Thor ZURBRIGGEN, Dena Catan, Haley Johnson, Lynnette Chester, Kimberly Johnson, Joseph Catan, Barbara Bell, Doug Crumrine, LaJuan Preston, Timothy Terry, Juliette Onody, Constance Germond McCord, Timothy R. Akers, Julie Burke, Patricia Behnke, Edward J. Burke, Stephen Weigel, Dora A. Brown Branch, Soad Hamdan, Vickie Isaac, Demetria Anderson, Keith Maginn, Judith J. Drake, Desiree Webber-Van Boxtel, Christina Nyakas, Christina H. Endicott, Sheryl Kelly, Scott J. Austin, Min Li, Carla J. Patterson, Bobbi Gordon, Carrie Bean, Lisa Joy, Kathy L. Runkle, Veronica Vera, Julie F. Kresko, Sandra Stuart, Deanna Jones, and Deborah A. Brasier, on behalf of themselves and others similarly situated, Plaintiffs, v. TWIN HILL ACQUISITION COMPANY, INC., American Airlines, Inc., PSA Airlines, Inc., and Envoy Air Inc., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Charles Jacob Gower, Pro Hac Vice, Korey Arthur Nelson, Pro Hac Vice, Burns Charest LLP, New Orleans, LA, Todd Lawrence McLawhorn, Siprut PC, Michael Matthew Chang, SmithAmundsen LLC, Stewart M. Weltman, Weltman Law LLC, Chicago, IL, Warren T. Burns, Pro Hac Vice, Burns Charest LLP, Dallas, TX, Martin Douglas Barrie, Pro Hac Vice, Burns Charest LLP, Maryville, TN, for Plaintiff Thor Zurbriggen.
Todd Lawrence McLawhorn, Siprut PC, Michael Matthew Chang, SmithAmundsen LLC, Stewart M. Weltman, Weltman Law LLC, Chicago, IL, Charles Jacob Gower, Burns Charest LLP, New Orleans, LA, Martin Douglas Barrie, Burns Charest LLP, Maryville, TN, for Plaintiff Dena Catan.
Todd Lawrence McLawhorn, Siprut PC, Chicago, IL, Charles Jacob Gower, Burns Charest LLP, New Orleans, LA, Martin Douglas Barrie, Burns Charest LLP, Maryville, TN, for Plaintiffs Haley Johnson, Joseph Catan, Timothy Terry, LuJuan Preston, Barbara Bell, Lynnette Chester, Doug Crumrine, Kimberly Johnson.
Todd Lawrence McLawhorn, Siprut PC, Chicago, IL, Martin Douglas Barrie, Burns Charest LLP, Maryville, TN, for Plaintiffs Juliette Onody, Constance Germond McCord, Timothy R. Akers, Julie Burke, Patricia Behnke, Edward J. Burke, Stephen Weigel, Dora A. Brown Branch, Soad Hamdan, Vickie Isaac, Demetria Anderson, Keith Maginn, Judith J. Drake, Desiree Webber-van Boxtel, Christina Nyakas, Christina H. Endicott, Sheryl Kelly, Scott J. Austin, Min Li, Carla J. Patterson, Bobbi Gordon, Carrie Bean, Lisa Joy, Kathy L. Runkle, Veronica Vera, Julie F. Kresko, Sandra Stuart, Deanna Jones, Deborah A. Brasier.
Martin Douglas Barrie, Burns Charest LLP, Maryville, TN, for Plaintiffs Julie Ann Snow, Nadia Ouladbrik, Kimberly A. Sutherland, Robert Johnson, Randall Szczepaniak, Kimberly Wooten, Darlene Graham, Darryl Kure, Pamela Gradei, Joseph Arcate, Bernadette Cassidy, Suzanne Thierry, Monte E. Dunard.
Francis A. Citera, Caitlyn E. Haller, Greenberg Traurig, LLP, Chicago, IL, for Defendant Twin Hill Acquisition, Inc.
Larry S. Kaplan, Matthew J. Obiala, Kma Zuckert LLC, Chicago, IL, Mark W. Robertson, Pro Hac Vice, O'Melveny & Myers LLP, New York, NY, Susannah K. Howard, Pro Hac Vice, O'Melveny & Myers LLP, San Francisco, CA, for Defendant American Airlines, Inc.
Mark W. Robertson, O'Melveny & Myers LLP, New York, NY, for Defendants American Airlines Group Inc., PSA Airlines, Inc., Envoy Air Inc.
John J. Tharp, Jr., United States District Judge In September 2016, American Airlines debuted new uniforms, the first in nearly 30 years, for its above-the-wing workforce. Soon after the rollout, pilots and flight attendants began reporting a variety of health issues linked to the uniforms, including skin rashes, vertigo, and respiratory problems. American represented that the uniforms were safe, but as the number of complaints continued to rise, the company permitted employees to wear alternative uniforms and ultimately announced that it would terminate its contract with the uniform manufacturer, Twin Hill, as of 2020. In evaluating American's motion to dismiss the First Amended Complaint,1 the Court found that the plaintiffs could not bring tort claims against American outside of the applicable workers’ compensation regimes because they had not demonstrated that American knew with requisite "substantial certainty" that any particular employees, much less the named plaintiffs, would be harmed by the Twin Hill uniforms.
In the Second Amended Complaint ("SAC"), the plaintiffs continue to press intentional tort claims against American (and Twin Hill) on behalf of all employees exposed to the Twin Hill uniforms, but they also seek to clear the "substantial certainty" obstacle by asserting claims based on a smaller group of employees who were "proximity reactors" to the uniforms—that is, who reacted to the Twin Hill uniforms when they were near someone wearing one, even if they themselves wore an alternative uniform—and who reported their adverse reactions to American and continued to have reactions to the Twin Hill uniforms at work. In addition, the SAC adds a fraud claim against American alleging that it falsely represented the safety of the Twin Hill uniforms.
American has moved to dismiss the SAC as again failing to adequately allege substantial certainty and asserting that the plaintiffs could not have relied on any statements by American about the safety of the uniforms because they had been exposed to the uniforms before the statements were made. With respect to proximity reactor plaintiffs who reported the health problems they were experiencing to American, the Court finds that the plaintiffs have plausibly shown that American knew harm was substantially certain to result from requiring them to work in proximity to others wearing the Twin Hill uniforms. That knowledge is sufficient to overcome workers’ compensation exclusivity in several states and, therefore, the SAC states a plausible claim to relief as to proximity reactor plaintiffs who reside in those states. The Court also concludes that the SAC plausibly alleges that certain plaintiffs relied on American's statements in continuing to wear the uniforms and as to such plaintiffs therefore also states a plausible claim for fraud. Otherwise, the motion to dismiss is granted.
The Second Amended Complaint has swollen to some 717 paragraphs setting forth the claims of 80 named plaintiffs.2 The Court accepts the truth of well-pleaded (that is, nonconclusory) facts alleged in the SAC for purposes of this motion, but this background section focuses on the facts most relevant to the new theories (proximity reaction and fraud) advanced against American in the SAC.
In 2013, American selected Twin Hill to manufacture a new line of uniforms for its flight attendants, pilots, and service agents. SAC ¶¶ 71, 73, ECF No. 98. Prior to Twin Hill's selection, the Allied Pilots Association ("APA") asked that American "not select Twin Hill because of its history and the dangers Twin Hill uniforms could pose to American's 70,000 person workforce," id. ¶ 81, as "[s]ubstantial numbers of employees of Alaska Airlines, as well as employees at UPS, Southwest and NetJet had all previously complained about their Twin Hill uniforms causing them ill-health," id. ¶ 79. American conducted two initial wear tests of the new Twin Hill uniforms, the first in early 2015 and the second in early 2016, and two rounds of testing with product testing company Intertek. In the early wear tests, some testers reported skin rashes and respiratory issues. Id. ¶ 111. In response to a letter from OSHA, American Occupational Health and Safety official Michael Hodes acknowledged that during the first wear test a "small number of participants reported developing physical symptoms while wearing the uniforms," id. ¶ 270, and that their symptoms were not limited to skin conditions, but also included "migraines, nausea, [and] sinus problems," id. ¶ 269.
In response to the first wear test, American sought out Intertek to test uniform fabric samples, both worn and unworn, for "chemicals that might provoke skin reactions." Id. ¶ 122. In its first report, dated April 1, 2015, Intertek found a total of 59 chemicals in the garments,3 including six that it could not identify. Id. ¶ 131. Four chemicals that had sensitization potential, two of which could also be irritants,4 were found in four garments; ten of the identified chemicals had irritation potential but were not known to be sensitizers. Of the twenty-four fabric samples tested, sensitizers or irritants appeared in twelve of them, including four of five worn samples. Intertek Report 1 at 7-9, ECF No. 108-1. Intertek concluded in its first report that while irritants were present in the fabrics, the concentrations of these chemicals would need to be quantified, as it is "unlikely that very low exposures to trace irritants from the fabric would cause a rash." Id. at 10.
The second Intertek report, published April 5, 2016, found three chemicals with sensitization potential and eleven with irritation potential. "Only those chemicals that were clearly identified with a corresponding [Chemical Abstracts Service] number were assessed" for their sensitization or irritation risk, though the report indicated that several unidentified chemicals were detected in the fabric samples, including "aromatic nitriles." Intertek Report 2 at 9, 12, ECF No. 108-2. The sensitization or irritation potential of these chemicals could not be ruled out without more specifically identifying them, but the report states that "the limited information available suggests that ‘aromatic nitriles’ are unlikely to be irritants or sensitizers" at the observed concentrations. Id. at 15.
Both Intertek reports focused on the risk of irritation or sensitization based on direct skin contact, rather than respiratory or other symptoms or proximity reactions. The plaintiffs allege that wearing "the new uniforms over time can cause the release of [chemicals] into the cabin air...
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