John J. Tharp, Jr., United States District Judge.
American Airlines, Inc. ("American") rolled out a new line of uniforms for its worldwide workforce in late 2016. What it hoped would be a seamless transition was anything but. According to the amended complaint, the new uniforms created a plague of health problems for American's workforce; within weeks, employees across the company reported developing skin rashes, respiratory problems, vertigo, and other ailments. The number of complaints supposedly grew so large so quickly that American backpedaled on the rollout two months later and permitted employees to revert back to their old uniforms. Within a year, the airline announced that it would cut ties with the uniform manufacturer, Twin Hill Acquisition Company, Inc. ("Twin Hill"). In the aftermath of the rollout, eleven American employees filed suit against their employer and Twin Hill on behalf of themselves and all other American employees who have been exposed to the uniforms. Plaintiffs contend that both defendants are liable for battery and intentional infliction of emotional distress, and that Twin Hill also is liable in negligence and products liability. Plaintiffs individually seek damages and on behalf of the class seek injunctive relief, including an order requiring Twin Hill to recall the uniforms it has provided to American employees and directing both companies to establish a medical monitoring fund to mitigate any possible long-term health effects to class members. American and Twin Hill responded to the amended complaint by filing
In around September 2016, American implemented a uniform change across its worldwide workforce. Am. Compl. ¶ 2, ECF No. 14.
Shortly after the companywide rollout — "within weeks if not days" — American employees began experiencing adverse reactions to the new uniform. Id. ¶ 27. The reactions included skin rashes, ear and throat irritation, headaches, fatigue, vertigo, the triggering of various auto-immune conditions, and negative effects on endocrine and liver functions. Id. ¶ 4. The reports of adverse reactions swelled in the months that followed, so much so that two of the unions representing American flight attendants set up special task forces to address the health issues posed by the uniforms. Id. ¶ 56.
American had learned of similar reports prior to the rollout. Id. ¶¶ 28-29. Twin Hill had supplied uniforms to Alaska Airlines ("Alaska") in 2011. Id. ¶ 29. However, Alaska was forced to transition to a different vendor after almost one-third of its flight attendants reported adverse health conditions akin to those later experienced by American employees. Id. Moreover, two years before American introduced Twin Hill uniforms to its workforce, American asked a number of pilots to field test the uniforms. Id. ¶ 28. Many of those pilots reported experiencing ill effects during testing, including rashes, flu-like symptoms, headache, vomiting, and respiratory problems. Id. When those adverse reactions came to light, one of the unions representing American pilots asked American not to introduce the uniforms. Id. The union's request went unheeded. Id.
In early October 2016, about a month after American switched to Twin Hill uniforms, the airline "formally recognized" the health concerns posed by the uniforms. Id. ¶ 62. In doing so, American established a call center to address individual complaints about the uniforms and offered employees who had been adversely affected to either order replacement garments or continue wearing their old blue uniform. Id. ¶ 63. American also agreed to perform "further random testing of garments" to determine the cause of the reported symptoms. Id. A month later, in November 2016, American went a step further and announced a reversal of the uniform change. Id. ¶ 79. The airline permitted employees to obtain new grey uniforms manufactured by a company other than Twin Hill or go back to wearing their old blue uniforms. Id. ¶¶ 79-80.
Following these developments, on June 22, 2017, American announced in a letter to employees that it was terminating its relationship with Twin Hill as of 2020. Id. ¶ 87. The letter, which was signed by several American senior vice presidents, stated that "[i]t is clear we [American] need a long-term solution because the current approach simply does not work." Id. By September 2017, Twin Hill had shipped over 1.4 million garments and accessories to more than 65,000 American employees worldwide. Id. ¶ 85. The garments had been manufactured in a number of countries throughout the world, including Bangladesh, Indonesia, China, Sri Lanka, and Vietnam. Id. ¶ 76. Between September 2016 and September 2017, over 4,700 flight attendants and over 600 pilots, in addition to other cockpit crew members and service representatives, reported experiencing ill effects from Twin Hill uniforms. Id. ¶¶ 4, 57, 85. The introduction of the Twin Hill uniforms was the only single common event that occurred throughout American's workforce during that timeframe. Id. ¶ 30.
Testing has been conducted on some of the uniform pieces manufactured by Twin Hill for American. Results from those tests indicate that Twin Hill uniforms are manufactured from synthetic materials and contain "[d]etectable amounts" of several chemicals, including known and possible carcinogens, as well as chemicals known to cause the type of "auto-immune" conditions experienced by American employees. Id. ¶¶ 52, 70-74. For example, testing detected the presence of chlordane, a potent carcinogen that is banned in the United States and is known to cause migraines, respiratory problems, immune system problems, blurry vision, confusion, and intractable seizures. Id. ¶ 71. Test results also identified the presence of formaldehyde, another known carcinogen that is widely used in industrial applications. Id. ¶ 74. Chronic long-term exposure to formaldehyde by inhalation can cause a wide array of health problems ranging from skin rashes and respiratory problems to fatigue and even cancer. Id. Moreover, testing has shown that levels of two other chemicals exceed limits established by OEKO-TEX, an independent testing certification service that sets standards for allowable amounts of chemicals in clothing. Id. ¶ 53. The excess amounts were found in several of the most commonly worn clothing items among American employees, including the suiting skirts. Id. ¶¶ 53, 75.
In September 2017, eleven American employees filed the present suit against American and Twin Hill. Plaintiffs include seven flight attendants, three pilots, and
Plaintiffs filed a five-count amended complaint. Counts I and II allege that both American and Twin Hill are liable for battery and intentional infliction of emotional distress for exposing plaintiffs to Twin Hill's toxic uniforms. In Counts III and IV, plaintiffs assert that Twin Hill is strictly liable and negligent for manufacturing and supplying defective uniform. Finally, in Count V, plaintiffs seek to hold American and Twin Hill liable under a medical monitoring theory for exposing them to on-going and future risks of developing additional medical complications. The complaint also states that plaintiffs seek to represent a nationwide class of all current and former American employees who were exposed to Twin Hill's uniforms on or after September 1, 2016. On behalf of the class, plaintiffs seek an injunction barring Twin Hill from providing any new uniforms to American and requiring Twin Hill to recall the uniforms it previously supplied to American employees. They also seek to establish a medical monitoring program that includes: (1) a trust fund to pay for the costs of monitoring the health of employees who have been exposed to the uniforms; (2) notification to all affected employees that they may require monitoring to detect any long-term effects from their exposure; and (3) disclosure and analysis of the chemicals present in the uniforms for use by physicians who are to treat American's employees. Finally, the named plaintiffs seek damages for their individual injuries.
American and Twin Hill responded to the amended complaint by moving to dismiss under Rule 12(b)(6). American argues that plaintiffs' claims against it are barred by state workers' compensation statutes, which provide the exclusive remedy for on-the-job injuries. Twin Hill contends that plaintiffs fail to state a plausible claim for relief against it largely because there is no basis to conclude its uniforms are the source of the harm alleged. Twin Hill further asks the Court to strike the class allegations in the complaint pursuant to Rule 12(f) and Rule 23 on the basis that plaintiffs will be unable to establish that their claims merit class treatment. Before addressing those motions, the Court must clarify the appropriate pleading standard and identify the substantive law to be applied at this stage of the proceedings.
A motion under Rule 12(b)(6) challenges the sufficiency of a complaint to state a claim upon which relief may be granted. Hallinan v. Fraternal Order of Police Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). To survive a motion to dismiss, "a plaintiff must allege `enough facts to state a claim to relief that is plausible on its face.'" Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 365-66 (7th Cir. 2018)
Plaintiffs have divided their allegations into five counts corresponding to five legal theories. Although this is a common and often helpful approach to pleading, it obscures the difference between "claims," which set forth grievances and demands for relief, and "counts" which describe legal theories by which those facts purportedly give rise to liability and damages. See ACF 2006 Corp. v. Mark C. Ladendorf, Attorney at Law, P.C., 826 F.3d 976, 981 (7th Cir. 2016); Liston v. King.com, Ltd., 254 F.Supp.3d 989, 1002 (N.D. Ill. 2017); Volling v. Antioch Rescue Squad, 999 F.Supp.2d 991, 996 (N.D. Ill. 2013). Pleading in counts is permitted, though not required, under Rule 10(b); indeed, it is axiomatic that plaintiffs need not plead legal theories at all. See Jajeh v. County of Cook, 678 F.3d 560, 567 (7th Cir. 2012) (hostile work environment claim pleaded where complaint never used that term); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) ("[W]e have stated repeatedly (and frequently) that a complaint need not plead legal theories, which can be learned during discovery.").
The distinction between claims and theories holds two implications for analyzing the adequacy of the complaint in this case. The first is that "[o]ne set of facts producing one injury creates one claim for relief, no matter how many laws the deeds violates." NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir. 1992). That principal applies here; the complaint is premised on one core set of facts and establishes a single grievance (i.e., claim) stemming from plaintiffs' exposure to Twin Hill uniforms. The second import is that, although the defendants challenge the viability of each legal theory asserted against them, plaintiffs' complaint, asserting that single claim, survives if it is supported by any single recognized legal theory. See Richards v. Mitcheff, 696 F.3d 635, 638 (7th Cir. 2012). That includes theories that are not "expressly identified in the complaint." Liston, 254 F.Supp.3d at 1002; see Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992). To prevail on their Rule 12(b)(6) motions then, American and Twin Hill must show that none of the legal theories plaintiffs advance against them, or any other legal theory, plausibly establishes a right to relief for the harm alleged. Id.
There is an additional wrinkle concerning the substantive law to apply to this dispute. The claim relies on diversity jurisdiction, so the Court must apply Illinois' choice-of-law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 S.Ct. 1477 (1941); Atl. Cas. Ins. Co. v. Garcia, 878 F.3d 566, 569
At this early stage of the litigation, there is little to go on to identify the state or states with the most significant relationship to the plaintiffs' alleged harms. The only exception is with regard to Plaintiffs Zurbriggen and Haley Johnson; both of these plaintiffs received and began wearing their Twin Hill uniforms in Illinois and suffered injury in that state. Am. Compl. ¶¶ 11, 13, 15. For the other nine plaintiffs, the complaint identifies only their domiciles; it does not indicate where they obtained their uniforms or where they experienced ill effects from the uniforms. Id. ¶¶ 14, 16-23. Based on this information, the defendants apply the law of each Plaintiff's alleged domicile for purposes of their motions. AA Br. 4, ECF No. 36; TH Br. 6-7, ECF No. 44. The plaintiffs follow suit in their responses, with the caveat that discovery may reveal that the law of some other states may apply at a later stage, especially given the size and mobility of American's workforce. Pl. Opp'n to TH Br. 3 & n.2, ECF No. 44; Pl. Opp'n to AA Br. 2 n.1, ECF No. 45. Given the lack of dispute over choice of law at this stage, see Auto-Owners, 580 F.3d at 547 ("Courts do not worry about conflicts of laws unless the parties disagree on which state's law applies."), the Court will apply the substantive law of the following states: Connecticut, Illinois, Indiana, Iowa, North Carolina, Nevada, and Texas (hereafter, the "Applicable States").
American's primary challenge to the complaint is that plaintiffs are barred from bringing suit against their employer under the Applicable States' workers' compensation regimes.
In many states, including the Applicable States, there is an exception to the exclusivity rule for intentional harm caused by the employer. The intentional harm exception lies at the heart of whether plaintiffs may maintain a suit against their employer. If it can be said that American intended to inflict physical (battery) or emotional (IIED) harm on the plaintiffs, then they can pursue relief against American outside of the workers' compensation system. Resolution of this dispute turns (depending on the jurisdiction) on whether the defendants specifically intended, were certain or were substantially certain that the new Twin Hill uniforms would injure the plaintiffs. Because the allegations of the complaint do not plausibly suggest that American was even substantially certain that any of the named plaintiffs would be injured by the new uniforms, it falls short of stating causes of action for the intentional torts of battery and intentional infliction of emotional distress under the law of any of the Applicable States.
Intent, as the term is commonly understood, refers to "a state of mind ... about the consequences of an act (or omission)." Prosser & Keaton, The Law of Torts 34 (5th ed. 1984). The Second Restatement defines intent to mean "that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it." Restatement (Second) of Torts § 8A (Am. Law. Inst. 1965). Put somewhat differently, intent embraces two concepts: purpose and knowledge. Restatement (Third) of Torts: Phys. & Emot. Harm § 1 cmt. a (Am. Law. Inst. 2010) (restyling definition to emphasize "dual definition" of intent). The purpose sense of intent is much easier to recognize; a quintessential example is an employer who punches an employee in the nose out of anger. Id. When a defendant seeks out or desires to inflict a certain type of harm, he specifically contemplates the consequences of his actions and his conduct almost always is considered wrongful. Id. The knowledge sense of intent is different; it turns not on what the defendant desired but on what was certain to follow from the defendant's actions. Restatement (Second) Torts § 8A cmt. b ("If the actor knows the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result."). Thus, for example, a defendant may be liable for intentional harm when he is "engaging in a generally proper activity for generally proper reasons," yet the "activity produces harm as an unavoidable but unwanted byproduct." Restatement (Third) Torts: Phys. & Emot. Harm § 1 cmt. a.
The distinction between purpose and knowledge matters in this case because jurisdictions are split on whether the intentional-tort
Several jurisdictions take a broader view and permit employees to bring suit under the knowledge prong as well. But the standard even among these states is not uniform. Several, including Indiana, require plaintiffs to establish actual knowledge; that is, knowledge that harm was "certain" to follow from the employer's conduct. Baker v. Westinghouse Elec. Corp., 637 N.E.2d 1271, 1275 & n.5 (Ind. 1994). But a number of other states construe intentional conduct to include substantial certainty that the conduct at issue will bring about a particular result. Three of the Applicable States — Connecticut, North Carolina, and Texas — fall into this category. Lucenti v. Laviero, 327 Conn. 764, 176 A.3d 1, 8-9 (2018); Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222, 231 (1991); Reed Tool Co. v. Copelin, 689 S.W.2d 404, 407 (Tex. 1985).
The first question is easily answered in the negative. The complaint stops short of alleging that American acted with a purpose to harm anyone. To be sure, plaintiffs contend that American intended its employees to "come in contact with" the Twin
Turning to the second question, plaintiffs contend that the complaint gives rise to the inference that American was certain, or at least substantially certain, that the Twin Hill uniforms would harm employees. Pl. Opp'n to AA Br. 6-10, ECF No. 45. In support, they point to allegations showing American received adverse reaction reports from pilots during pre-launch testing and knew about Twin Hill's prior problems with uniforms manufactured for Alaska. In all events, plaintiffs continue, American knew the uniforms were hazardous shortly after they were introduced across the company. American received a flood of reports from across its workforce within days of the launch, and those complaints culminated in American's decision to roll back the new uniforms and repudiate its contract with Twin Hill. Even construing these allegations in a light most favorable to plaintiffs, the Court finds that they do not establish the intentional conduct necessary to avoid workers' compensation preemption.
The problem is not that plaintiffs fail to sufficiently allege that Twin Hill's uniforms can be harmful or even that American knew as much.
Plaintiffs estimate that 25-30% of American's workforce has suffered adverse health effects from working in or around Twin Hill uniforms. Am. Compl. ¶ 84 (referring to affected employees as "reactors"). There are two inferences that reasonably can be drawn from this allegation that bear on the issue of substantial certainty. The first is that each American employee faced a 25 to 30% risk of suffering ill effects after the uniforms were introduced. This inference does not take plaintiffs very far; even assuming American knew that its new uniforms posed such a risk to each employee, that risk exposure is too modest to plausibly suggest that American was substantially certain that the uniforms would injure any particular employee. "Mere risk, however great, is not enough to show intent under the traditional concept of substantial certainty." Dan B. Dobbs et al., Dobbs' Law of Torts § 506 (2d ed.); accord Sullivan v. Lake Compounce Theme Park, 277 Conn. 113, 889 A.2d 810, 814 (2006) (noting that even "high risk or probability of harm is not equivalent to ... substantial certainty without which an actor cannot be said to intend the harm in which his act results") (citation omitted); Whitaker v. Town of Scotland Neck, 357 N.C. 552, 597 S.E.2d 665, 668 (2003) ("[S]imply having knowledge of some possibility, or even probability, of injury or death is not the same as knowledge of a substantial injury or death.").
The second inference that can be drawn from the alleged number of reactors is that American was substantially certain that its new uniforms would cause harm to 25 to 30% of its workforce. This inference shifts the vantage point of certainty from what American knew about the risk of harm to its employees individually to what American knew about the risk of harm to its employees collectively. And it is from this collective perspective that plaintiffs seek to gage American's intent. Plaintiffs contend that American is liable to any employee who was ultimately harmed by the uniforms as long as the airline knew (or was substantially certain) that some portion of its workforce would be harmed. Pl Opp'n to AA Br. 6-7, ECF No. 45 (arguing that allegations support "inference that American has knowingly ... taking actions that are causing ... harm ... to thousands of its employees"); Pl. Supp. Mem. 2, ECF No. 89 (stating that American knew that it was "going to harm thousands of American employees with [the Twin Hill] uniforms"). The difficulty with the plaintiffs' collective view of substantial certainty, however, is that it blurs the line between negligence, recklessness, and knowledge.
Substantial certainty, like negligence and recklessness, is a way point along the spectrum of culpability. The difference between these thresholds is "a matter of degree," with the line being drawn "where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and comes in the mind of the actor a substantial certainty." State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 378 (Tex. 1993); accord Lucenti, 327 Conn. 764, 176 A.3d at 9. "As the probability that a certain consequence will follow decreases, and becomes less than substantially certain, the actor's conduct loses the character of intent, and becomes mere recklessness. As the probability decreases further, and amounts only to a risk that the
But the degree of certainty is not the only factor that bears on the issue of substantial certainty; there also must be some predictability as to who the victim of the actor's misconduct will be. It is not enough for purposes of intentional-tort liability to show that injury is substantially certain to occur to someone. Dobbs, supra, § 29 ("It does not suffice to say that the defendant maintains a dangerous condition on his land that, over a period of years, is almost certain to cause injury to someone."). Rather, the test requires, at least in the context of occupational-hazard cases, that the defendant know to a substantial certainty that its conduct will result in harm to "
This focus on the identity of the victim is essential to distinguishing accidental and intentional conduct. At a broad level of generality, it might be said that there are few "accidents" in the workplace; work creates risk and where humans are involved — that is to say, everywhere on the planet — with enough repetition, risks will be realized and injuries will occur. This is a function of the laws of probability; with enough repetition, all possible results are substantially certain to occur. See Kenneth W. Simons, Statistical Knowledge Deconstructed, 92 B.U. L. Rev. 1, 25 & n.42 (2012). But that does not mean that such results are
Plaintiffs object that it would be an "anomalous result if no intent can be found where American was substantially certain that thousands would be harmed, but would be found to act with intent if it knew that one or two employees would be harmed." Pl. Supp. Br. 6, ECF No. 89. But that's not quite right; the premise conflates statistical knowledge that harm will result to some members of a collective group with individualized knowledge that harm will result to an identifiable victim. Liability on an intentional-tort theory generally requires the latter: to recover, a plaintiff must demonstrate that the defendant intended (or at least was substantially certain) that the plaintiff — not someone else — would be harmed by the conduct at issue.
Recognizing this problem, the plaintiffs focus not on the question of whether American intended to harm a particular plaintiff but on the statistical risks to employees as a collective group; they suggest that given the scope of distribution — over 1.4 million clothing articles issued to over 65,000 employees — American was aware that the uniforms were bound to harm thousands of its employees based on the issues that had cropped up during testing and among Alaskan employees. They contend that even if the risk of harm to any one of them was low, American knew that harm to some portion of its workforce was statistically certain given that the risk was run tens of thousands of times.
Two of the other Applicable States also appear to require employers to know that their actions will result in the specific injury at issue. In Reed Tool, the Texas Supreme Court stated that an employer's intentional failure to provide a safe workplace will not amount to an intentional tort "except when the employer believes his conduct is substantially certain to cause the injury." 689 S.W.2d at 407. "By using the definite article `the' instead of the indefinite article `an,' a Texas court recently explained, Reed Tool "implicitly held that knowledge of a general or non specific consequences would not suffice." Berkel & Co. Contractors, Inc. v. Lee, 543 S.W.3d 288, 300 (Tex. App. 2018), reh'g granted in part (Jan. 23, 2018), petition for review filed (June 20, 2018). The North Carolina Supreme Court utilized similar language in Whitaker, its most recent discussion of the state's exclusivity provision. There, the Court held that an employee may invoke the intentional-tort exception only "where there is uncontroverted evidence of the employer's intentional misconduct and where such misconduct is substantially certain to lead to the employee's serious injury or death." Whitaker, 357 N.C. 552, 597 S.E.2d at 668.
In the second case, Moore v. Alcatel-Lucent USA, Inc., a federal district court applying North Carolina law held that a cable installer failed to sufficiently show intentional harm from asbestos exposure and was thus statutorily barred from suing his employer. No. 16 CV 00157-MR-DLH, 2017 WL 4350982, at *2-3 (W.D.N.C. Sept. 27, 2017). The installer proffered evidence showing, among other things, that the employer supplied numerous asbestos-containing products that the installer and others had used, that the installer had been subjected to high levels of asbestos, and that the employer was aware of a link between asbestos and mesothelioma. Id. at *2. In granting summary judgment for the employer, the court concluded that even though the evidence suggested the employer "knew that such exposure was possibly or even probably harmful, it is not sufficient to establish that [the employer] intentionally engaged in misconduct knowing that it was substantially certain to cause serious injury or death to Mr. Moore [the installer]." Id. at *3.
Plaintiffs contend that other courts have reached the opposite conclusion; namely, that a defendant has the requisite intent to commit an intentional tort so long as it was substantially certainty that someone — though not the particular victim — would be harmed by its misconduct. Pl. Supp. Br. 2, 6, 7. Implicitly acknowledging that courts in the Applicable States have not so held, they rely heavily on two cases — Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (Pa. Super. Ct. 1989), and Arias v. DynCorp, No. 01 C 1908 (ESH), 2016 WL 6496214 (D.D.C. Sept. 23, 2016) — that apply the law of jurisdictions other than the Applicable States (Pennsylvania and the District of Columbia, respectively). Neither case is persuasive. Field is entirely inapposite; it concerned a power plant technician who was exposed to high levels of radiation after his employer vented radioactive steam inside the tunnel where he was working. 388 Pa.Super. 400,
Although Arias is more factually analogous, it rests on a shaky foundation. The district court in that case denied a motion to dismiss a battery claim brought by numerous Ecuadoran citizens against a company that had released fumigants by air over large swaths of the country in an effort to eradicate poppy plantations. 2016 WL 6496214, at *6-9. In so holding, the court stated that a finding of intent requires "merely knowledge that harmful or offensive contact to somebody will occur with substantial probability." Id. at *6. Although the court did not discuss its formulation of the intent requirement in depth, it did cite to two other cases. Neither of those cases, however, support that proposition. The first case, Acosta Orellana v. CropLife Intern., 711 F.Supp.2d 81, 91 (D.D.C. 2010), actually undermines a "some" person standard of intent. Acosta held that a defendant is liable for battery under District of Columbia law when it commits "`(a) harmful or offensive contact with a person,' which, `(b) results from an act intended to cause
In all events, the weight of authority outside of the Applicable States appears to acknowledge the requirement that substantial certainty must extend to the identity of the victim as well as the potential consequence of the conduct at issue. As discussed above, at least three other state supreme courts have embraced the principle underlying comment e, even if they have not cited the Third Restatement. See Walston, 181 Wn.2d 391, 334 P.3d at 522-23; Helf, 203 P.3d at 974; Reeves, 731 So.2d at 212. Myriad other courts have taken a consistent approach. See, e.g., R.L. Haines, 161 So.3d at 533-34 ("Appellees
Plaintiffs raise one other argument about the viability of the identification requirement reflected in comment e. They suggest that, given the examples set forth in the Third Restatement, the comment applies only in situations where the harm is a necessary by-product of the employer's business. Pl. Supp. Br. 3, ECF No. 89. In this case, plaintiffs continue, the rule does not apply because "providing dangerous uniforms is not an unavoidable consequence of the normal operation of American's business." Id. The Court disagrees with plaintiffs' interpretation. Whether or not a danger is an unavoidable byproduct of an employer's business says nothing about who will be the particular victim of that conduct (indeed, if anything, it makes it more difficult to identify the likely victim(s) with substantial certainty). The focus of the rule is on whether the employer could have "confidentially predicted" the identity of potential victims that would be harmed by its business decision. Berkel, 543 S.W.3d at 301; see also Helf, 2009 UT 11, 203 P.3d at 974 ("For a workplace injury to qualify as an intentional injury under the Act, the employer ... must know or except that the assigned task will injure the particular employee that undertakes it."). Thus, the Court concludes that to avoid workers' compensation preemption in the Applicable States that recognize the knowledge prong of intent, a plaintiff must plead and prove that the defendant was (at least) substantially certain that its actions would injure the plaintiff, either individually or as a member of a small class of potential victims.
Nor is there a basis to conclude that any of the named plaintiffs were part of a small class of employees who were certain to develop health problems. Plaintiffs contend that, even under comment e, it is enough that American knew that some portion of its over 65,000 employees would be harmed. In support of this argument, they urge the Court not to read the Restatement literally; rather, they insist, the rule requires only that the defendant be substantially certain that some "defined group or class of people, as opposed to some unknown group in some unknown area, would be harmed." Pl. Supp. Mem. 4, ECF No. 89. They add as well that requiring a narrower class of potential victims is unnecessary here given that are "no temporal attenuations" that make the connection between American's conduct and the harm alleged "more complex," given that some employees experienced adverse reactions immediately after the roll-out. Id. at 7. This argument lacks force.
If the Court were to adopt plaintiff's construction, then the identity requirement would be satisfied in every occupational hazard case because an employer's workforce would always constitute a "defined" group. To be sure, the qualifications referenced in comment e — "a small class of potential victims within a localized area" — typically raise a question of fact regarding whether a risk is sufficiently concentrated and imminent to support a finding of substantial certainty. But, the allegations of harm here are so far removed from being "small" or "localized" that the complaint does not plausibly invoke this standard. It is one thing to say that the known risk posed by a specific machine to the small number of identifiable employees who use it could satisfy substantial certainty standard, see, e.g., Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994), because in that case the employer's ersatz "intent" — its substantial certainty — remains narrowly focused on a truly discrete group of employees. It is entirely another to apply the doctrine of substantial certainty to virtually every one of tens of thousands of employees, performing widely varied roles, throughout every part of the company and located throughout the world.
Nor does the fact that some employees experienced ill effects shortly after the roll out solve this problem. Although the timing certainly supports plaintiffs' contention that the uniforms are the cause of the harm at issue, it does not shed light (at least in this case) on the identity of any potential victims. At bottom, that American was aware of the risk that some portion of its workforce would develop health problems does not support liability for an intentional tort sufficient to overcome exclusivity.
Finally, and contrary to plaintiff's contention, the outcome of the substantial certainty analysis does not change if the focus is shifted to American's refusal to pull all Twin Hill uniforms from circulation after receiving a torrent of complaints from employees. Plaintiffs acknowledge that American took some measures to address the adverse reaction reports. American initially permitted employees who reported experiencing health problems to order new uniforms or revert to their old ones. Am. Compl. ¶ 63. And when that did not eliminate the problem, American reversed course on the uniform rollout in November 2016 and stopped requiring (at least affected) employees to wear Twin Hill uniforms. Id. ¶¶ 79-80. Given these allegations, what plaintiffs are really contending is that American is liable for battery and intentional infliction of emotional distress because it was certain that employees were being harmed from working near others who still wore Twin Hill uniforms. Put differently, plaintiffs allege that in light of the thousands of adverse reaction reports that were filed after November 2016, American must have known that its employees were being harmed through close proximity, not just direct contact, with the Twin Hill uniforms.
This contention fails for much the same reason the uniform rollout allegations are insufficient. The complaint provides no basis to find that American knew that any of the named plaintiffs would suffer or continue to suffer harm after being permitted to wear alternative uniforms. That plaintiffs are among the portion of American's workforce who react to Twin Hill uniforms through close proximity does not mean that American knew they would be among that population. To the contrary, the complaint at most alleges that American knowingly permitted a hazardous condition to exist throughout its workforce and willfully failed to furnish a safe place to work. And absent some indication that the employer was substantially certain that the plaintiffs would be injured by such misconduct, neither basis is sufficient to overcome workers' compensation exclusivity. See, e.g., Reed Tool, 689 S.W.2d at 406 (citing 2A A. Larson, The Law of Workers' Compensation § 68.13 (1983)); Stebbins v. Doncasters, Inc., 47 Conn.Sup. 638, 820 A.2d 1137, 1142 (2002) ("Failure to take affirmative remedial action, even if wrongful, does not demonstrate an affirmative intent to create a situation that causes personal injury.") (citation omitted), aff'd, 263 Conn. 231, 819 A.2d 287 (2003). Therefore, because the allegations in the amended complaint do not support intentional-tort liability — either under the purpose or knowledge sense of intent — the plaintiffs' recovery against American is limited to the remedies provided by the Applicable States' workers' compensation regimes.
Two other issues regarding plaintiffs' claims against American must also be addressed before closing. First, plaintiffs
The second issue concerns plaintiffs' medical monitoring theory. Although plaintiffs argue (in response to Twin Hill's motion to dismiss) that they have pled sufficient facts to proceed on this theory, they fail to address how it squares with workers' compensation exclusivity. It is not readily apparent to this Court how this theory (whether labeled as a cause of action or a form of relief) would overcome exclusivity, especially considering that the crux of the relief plaintiffs seek is to establish a medical monitoring trust fund; that is, a pool of damages meant to compensate American employees for the risk of future harm imposed on them by their employer. There may be reasons to conclude otherwise, but the plaintiffs offer no explanation as to how they can maintain a medical monitoring claim consistent with the exclusivity rule in the absence of conduct that qualifies as intentional under that rule. Accordingly, the Court finds that this theory is barred as well. Because that the plaintiffs' claims against American are precluded by the applicable exclusivity statutes, American's motion to dismiss is granted.
Having dismissed American, the Court now turns to Twin Hill's motion to dismiss. Twin Hill argues that plaintiffs have not sufficiently alleged facts showing an entitlement to relief under any of the five legal theories they assert: battery, intentional infliction of emotional distress, negligence, strict liability, or medical monitoring. Because the Court concludes that plaintiffs state a claim under a product liability theory, Twin Hill's Rule 12(b)(6) motion to dismiss the complaint must be denied.
Although there is "no monolithic products liability law in the United States," 1 M. Stuart Madden, Products Liability § 2.01 (2018), there are some shared principles that characterize product liability theory across jurisdictions. In many states, including the Applicable States, plaintiffs must show at least that the product at issue has an unreasonably dangerous defect; that the defect existed at the time the product left the manufacturer's control; and that the defect caused the injury for which the plaintiffs seek redress.
The Applicable States apply various approaches to design defects. For starters, the states are divided on whether they classify design defects as a matter of strict liability or negligence. Connecticut, Illinois, Nevada, and Texas fall on the strict liability side of the divide. See Izzarelli, 321 Conn. 172, 136 A.3d at 1244; Mikolajczyk, 231 Ill.2d 516, 327 Ill.Dec. 1, 901 N.E.2d at 345; Trejo, 402 P.3d at 657; Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334-35 (Tex. 1998). But Indiana, Iowa, and North Carolina view design defects through the lens of negligence. See TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 209 (Ind. 2010); Scott v. Dutton-Lainson Co., 774 N.W.2d 501, 504 (Iowa 2009); see DeWitt, 144 N.C. App. 143, 550 S.E.2d at 518 (stating that plaintiff must establish manufacturer "acted unreasonably") (citation omitted).
The Applicable States also subscribe to different methods of proof for establishing design defects. Nevada utilizes the consumer expectation test, which generally asks whether the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Trejo, 402 P.3d at 652, 658. Texas applies a risk-utility test that looks at whether the manufacturer could have provided a safer alternative design. Genie Indus., Inc. v. Matak, 462 S.W.3d 1, 7 (Tex. 2015) ("A safer alternative design is one that would have prevented or significantly reduced the risk of injury, would not substantially impair the product's utility, and was economically and technological feasible at the time."). Iowa applies a risk-utility test as well, though it has specifically adopted the standard set out in the Third Restatement of Products Liability. Wright, 652 N.W.2d at 169-70. This version of the risk-utility test asks whether "the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller
Connecticut and Illinois apply some combination of the consumer expectation and risk-utility tests. Connecticut typically employs a risk-utility test but applies a consumer exception test in a narrow set of cases where the product fails to meet a consumer's minimum safety expectations. Bagley v. Adel Wiggins Grp., 327 Conn. 89, 171 A.3d 432, 446 & n.17 (2017); Izzarelli, 321 Conn. 172, 136 A.3d at 1242-44, 1249 (referring to Connecticut's primary test as "modified consumer expectation test" and explaining that test calls for jury to "weigh the product's risks and utility and then inquire, in light of those factors, whether a `reasonable consumer would consider the product design unreasonably dangerous'"). Illinois, on the other hand, permits plaintiffs to utilize either a consumer expectation or risk-utility test. Mikolajczyk, 231 Ill.2d 516, 327 Ill.Dec. 1, 901 N.E.2d at 352-53.
Finally, North Carolina and Indiana have codified their standards for determining when a manufacturer has breached its duty of care in designing a product. North Carolina requires a plaintiff to show "that at the time of its manufacture[,] the manufacturer acted unreasonably in designing or formulating the product" and "that this conduct was a proximate cause of the harm from which damages are sought." N.C. Gen. Stat. Ann. § 99B-6 (West 2018). Additionally, a plaintiff must show one of two alternatives:
Id.; see also DeWitt, 144 N.C. App. 143, 550 S.E.2d at 518-19 (noting that statute sets out seven nonexclusive factors for assessing whether design is unreasonable). And in Indiana, a plaintiff is required to show that the manufacturer "failed to exercise reasonable care under the circumstances in designing the product." Ind. Code Ann. § 34-20-2-2; see TRW, 936 N.E.2d at 209 ("We decline to require proof of any additional or more particular standard of care in product liability actions alleging a design defect."); Weigle v. SPX Corp., 729 F.3d 724, 734 (7th Cir. 2013) (explaining that statute asks whether "the defendant `failed to take precautions that are less expensive than the net costs of accidents'") (citation omitted). Indiana plaintiffs also must show that the product was "unreasonably dangerous," meaning that it "expose[d] the user or consumer to a risk of physical harm to an extent beyond that contemplated by the ordinary consumer." Ind. Code § 34-6-2-146; see also Weigle, 729 F.3d at 735 (citation omitted) (noting that Indiana's "requirement that the product be in defective condition focuses on the product itself while the requirement that the product be unreasonably dangerous focuses on the reasonable expectations of the consumer").
Despite the variance in state law, the Court concludes that each of the plaintiffs has pleaded sufficient facts to maintain
These allegations are sufficient to infer a design defect under a consumer expectation test and the various risk-utility tests. An ordinary American employee would not expect company-issued uniforms to give rise to any health problems — let alone skin, respiratory, and auto-immune issues — through normal wear. And although plaintiffs do not posit an alternative design in the complaint, one can be inferred from their allegations: a uniform free of the hazardous chemicals identified in the complaint. Whether it would actually have been feasible for Twin Hill to manufacture the uniforms in a way that minimized or eliminated these substances is a question of fact to be developed through discovery, but it is plausible to infer at this stage that it was feasible to design uniforms that did not use such chemicals; companies outfit their employees in uniforms every day that do not create the sort of health issues alleged in this case.
The allegations also give rise to the inference that Twin Hill failed to exercise reasonable care in designing the uniforms. In particular, the allegations suggest Twin Hill knew, or at least should have known, that its uniforms would cause numerous American employees to develop health problems. Twin Hill was aware that "many" American pilots reported experiencing "rashes, flu-like symptoms, headaches, vomiting, and respiratory problems" during testing and that one of the pilot unions requested that the uniforms not be used. Am. Compl. ¶ 28. And Twin Hill also knew that it was embroiled in litigation with Alaska employees who had reported suffering similar adverse reactions. Id. ¶ 28.
At bottom, the complaint presents a plausible, factual-based story that Twin Hill uniforms are unreasonably dangerous in their design and so meets the pleading standards set forth in Rule 8. See Bausch v. Stryker Corp., 630 F.3d 546, 560 (7th Cir. 2010) (holding that plaintiffs need not specify precise defect in complaint in reversing Rule 12(b)(6) dismissal of product liability claim); Tyler v. Boston Sci. Corp., No. 17 C 9170, 2018 WL 2220531, at *3 (N.D. Ill. May 15, 2018) (denying motion to dismiss product liability claim where plaintiff identified defective product, and alleged
Twin Hill contends that even if the uniforms are somehow defective, plaintiffs fail to establish a plausible causal connection between the chemicals identified in the uniforms and any of the adverse reactions referenced by the plaintiffs. According to Twin Hill, plaintiffs "acknowledge" that no single chemical is present in the uniforms "at a high enough level to cause health problems," and "all but admit[] that testing likely cannot determine whether or not a synergistic effect from a combination of chemicals caused health effects." TH Br. 11-12 (citing Am. Compl. ¶¶ 35-36). Neither contention is accurate. In paragraph 35, plaintiffs merely acknowledge that its
Even if testing to date has not identified an objectively high level of any single chemical or corroborated plaintiffs' synergistic theory, the complaint still plausibly alleges that Twin Hill's uniforms are the source of the harm at issue. Plaintiffs contend that a large number of American employees began experiencing similar health problems shortly after the Twin Hill uniforms were introduced. Id. ¶¶ 4, 55. Employees began reporting health problems "within weeks if not days" of the rollout. Id. ¶ 27. The number of reports allegedly swelled over the course of the next several months, with over 5,000 American employees complaining of uniform-related health problems within a year of the launch. Id. ¶¶ 4, 55, 57. Moreover, plaintiffs allege that the introduction of the Twin Hill uniforms was the only "common event that happened to the entire workforce" during that timeframe. Id. ¶ 30. They add as well that the adverse reactions typically dissipate when employees are not exposed to the uniforms yet reappear when the employees are exposed to the uniforms again. Id. ¶¶ 37-39. These factual allegations, taken as true and in the light most favorable to plaintiffs, are sufficient to establish above a speculative level that the uniforms are the source of harm.
Twin Hill's final argument is that plaintiffs "cloak their allegations in generalities." TH Reply 8, ECF No. 51. Twin Hill essentially complains that plaintiffs do not allege what "specific uniforms garments they wore or were exposed to" and what specific "adverse health effects" they experienced, let alone how those effects "could be associated with the uniforms garments Plaintiffs wore." Id.; see also TH Br. 16, ECF No. 43. Given this lack of specificity, Twin Hill contends, plaintiffs do not provide sufficient information — which is well within their possession and control — to support their individual claims. This argument lacks force as well. Addressing the second issue first, the complaint does in fact specify how the plaintiffs have been affected. Twin Hill focuses on the rote allegations in which plaintiffs state in a general fashion that they experienced "adverse reactions" while working in or around Twin Hill uniforms. Am. Compl. ¶¶ 38-48. But Twin Hill overlooks the very next paragraph in the complaint: "
Nor is the Court persuaded that plaintiffs must provide more detail about the uniform garments they wore or to which they were exposed. Twin Hill suggests that there is an insufficient link between the uniform garments that plaintiffs tested and the ones that allegedly caused plaintiffs to suffer adverse effects — especially given that Twin Hill has supplied "dozens of different garments choices" to American employees. TH Br. 8, ECF No. 51. There are two problems with this argument. First, it draws on facts that are beyond the four corners of the complaint. Second, the Court may infer from the complaint that plaintiffs' Twin Hill uniforms contain some of the same chemicals as the uniforms that were tested. Plaintiffs allege that they have experienced symptoms that are consistent with those associated with exposure to the chemicals identified through testing. See Am. Compl. ¶¶ 31, 49, 70-74. The facts may prove otherwise and the plaintiffs will need to establish causation, but they at least will have the benefit of discovery to meet this burden. Therefore, because plaintiffs have stated a claim against Twin Hill under at least a product liability theory, Twin Hill's motion to dismiss the complaint is denied.
Finally, Twin Hill moves to strike plaintiffs' class allegations on the grounds that they have not, and cannot at a later stage, meet the requirements for class treatment. A number of courts in this district have recognized that striking class allegations at the pleading stage is permissible "when it is apparent from the complaint that class certification is inappropriate." Rysewyk, 2015 WL 9259886, at *7 (citations omitted); see also Cowen v. Lenny & Larry's, Inc., No. 17 CV 1530, 2017 WL 4572201, at *4 (N.D. Ill. Oct. 12, 2017) (finding Rule 12(f) motion to strike class allegations appropriate when allegations are "facially and inherently deficient"). But see Mednick v. Precor, Inc., No. 14 C 3624, 2014 WL 6474915, at *7 (N.D. Ill. Nov. 13, 2014) ("Whether a plaintiff has fulfilled Rule 23 class action requirements ... is not an appropriate inquiry at the motion to dismiss stage."). Courts hewing to this approach look to Rule 23 and Rule 12(f) for authority. Rule 23(c)(1)(A) calls on courts to determine "[a]t an early practicable time" whether certification is appropriate. Rule 23(d)(1)(D), moreover, provides that "[i]n conducting an action under this rule, the court may issue orders that: ... require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly." Coupled with these provisions is Rule 12(f), which permits district courts to strike "an insufficient defense" from a pleading.
Twin Hill argues that the class allegations here should be stricken for two reasons, but neither persuades. The first is that variations in state law and individual class member's circumstances will make certification impossible. TH Br. 21, ECF No. 43. In particular, Twin Hill suggests that the class may require applying the law of all fifty states and points to the lack of uniformity in product liability and medical monitoring law across jurisdictions. Moreover, Twin Hill continues, the divergent legal standards will be complicated by individualized factual questions, such as "how long each individual wore the uniforms, the alleged chemical(s) present in each uniform, and each individual's health history." Id. at 23. Plaintiffs respond that this argument is premature at best. Pl. Opp'n to TH Br. 17-18, ECF No. 44. Although they concede that the class' claim "conceivably might involve the laws of [fifty] different states at some point," they note that it is not clear whether that will be the case. Id. at 17. Plaintiffs add that the parties will need discovery on the domicile of each class member, as well as on where each class member was injured, to understand the implications of Illinois' choice-of-law rules. Id. at 18. At any rate, plaintiffs argue, even if state law varies significantly, the Court may certify a class based on common issues of fact, of which there are several in this case. Id. at 20.
Plaintiffs have the better of this argument. The Court is hard pressed to declare that a class action is unworkable based on variations in state law when it is far from
Two other considerations bolster the Court's conclusion. First, material differences in substantive state law could be addressed through subclasses. See Butler v. Sears, Roebuck & Co., 727 F.3d 796, 798-99 (7th Cir. 2013) (explaining that district courts may address complications arising from variances in state laws through the creation of subclasses); Wagner, 2017 WL 3070772, at *9 (rejecting pre-discovery motion to deny class certification based on differences in state law, in part, because concern could be addressed through subclasses). Although it is unclear whether subclasses would fully address Twin Hill's concern down the road, what matters here is that the subclass mechanism is a potential alternative to denying certification outright. Cf. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012) (explaining that some impediments to class certification "can and often should be solved by refining the class definition rather than flatly denying class certification"). Second, there is at least one common question of fact that could give rise to certification.
Twin Hill's second ground for striking the class allegations is similarly unavailing. Twin Hill contends that plaintiffs seek prospective injunctive relief on behalf of the class yet cannot show that any members of the class are suffering from a continuing harm in light of American's decision to permit employees to wear alternative uniforms. TH Br. 23, ECF No. 43. But Twin Hill ignores allegations in the complaint that plaintiffs and putative class members continue to suffer ill effects by working
For the above reasons, American's Rule 12(b)(6) motion to dismiss is granted. The dismissal, however, is without prejudice; plaintiffs have leave to re-plead their claims to address the issues set forth in this opinion, if they are able. Any amended complaint is due no later than October 4, 2018. Twin Hill's Rule 12(b)(6) motion to dismiss and Rule 12(f) motion to strike are denied.
