SCHMEHL, District Judge.
Plaintiffs Brenda Schwartz and her now-husband Paul bring claims for harm to Brenda they claim is the result of exposure to beryllium carried home from work on shoes and clothing by Paul and a third person who was their roommate. Defendants are two companies at which the husband and roommate worked with beryllium products. Resolution of their motions to dismiss involves choice of law issues, the viability of the "take-home" theory of negligence liability, and several potential avenues of strict liability. For reasons explained below, the Court will grant in part and deny in part the motions to dismiss. Specifically, the negligence claim is dismissed against Accuratus but may proceed against Brush; the strict products liability claim is dismissed against Accuratus and may proceed only in limited form against Brush; and the strict liability for abnormally dangerous activity claim may proceed against both Defendants.
The primary Plaintiff is Brenda Ann Schwartz ("Brenda"), who allegedly suffers a variety of adverse health effects associated with chronic beryllium disease. Her husband, Paul Grant Schwartz ("Paul"), brings a loss of consortium claim. Both Plaintiffs are Pennsylvania residents. Defendants
As the name suggests, chronic beryllium disease results from exposure to beryllium, apparently in dust form; without undue focus on technical aspects at this stage, the factual and legal situation can be considered analogous to the more familiar issue of asbestos exposure. As with asbestos, exposure to beryllium can result from employment in facilities that work with it. However, Brenda was never employed by either Defendant; rather, she alleges she was exposed to beryllium carried home from work, on clothing and/or shoes, by Paul and a roommate named Gregory Altemose ("Altemose").
Brenda and Paul met and began dating in 1978. Paul moved in with Altemose in 1979, and Brenda spent a lot of time at their apartment. In June 1980, Brenda married Paul and moved into the apartment, where all three lived together for a time. In 1978 and 1979 — that is, when Brenda was merely dating Paul and visiting the apartment — Paul worked at Accuratus. Altemose also started at Accuratus in 1978, but continued working there until the present. Therefore, beryllium from Accuratus could have reached Brenda via Paul before they were married, or via Altemose, a roommate.
From 1979 through 1987, Paul worked at Brush. In addition, in 1978 and 1979, when Paul worked at Accuratus, Brush sold beryllium products to Accuratus, which may then have been used in further manufacturing processes at Accuratus. Therefore, beryllium from Brush could have reached Brenda via Paul while they were married, with Paul bringing it home directly from his employment at Brush, or via Altemose or Paul prior to the marriage bringing it home from employment at Accuratus (where at least some of the beryllium came from Brush).
Plaintiffs originally filed suit in state court. The suit named an additional Defendant, Dennis Tretter, a Pennsylvania citizen who was an Accuratus employee enforcing safety policies. On November 1, 2012, Defendants removed the action to this Court, arguing that Tretter was fraudulently joined to defeat diversity jurisdiction. Plaintiffs filed a motion to remand dealing with that issue, which Judge C. Darnell Jones denied on March 1, 2013. As discussed further below, Judge Jones's order (as well as a subsequent order denying reconsideration on April 5, 2013) examined Tretter's potential liability in a lengthy footnote and, finding none, ruled that Tretter's joinder was unfounded and jurisdiction in this Court on the basis of diversity was proper.
In accordance with Court order, Plaintiffs filed an Amended Complaint on May 2, 2013. Both Defendants moved to dismiss, although Accuratus chose not to file its own brief and instead rely on the brief submitted by Brush. The case was transferred to the undersigned on July 30, 2013, and a preliminary pretrial conference was held September 19, 2013. After the conference, the Court stayed discovery pending issuance of the present ruling on the motions to dismiss but nevertheless set discovery and other deadlines. Those deadlines are now extended by an order entered contemporaneously with this opinion.
Plaintiffs' Amended Complaint asserts ten counts. Counts I-IV are brought by Brenda against Accuratus for negligence, strict liability for abnormally dangerous activities, strict liability for ultrahazardous activities, and strict products liability under § 402A of the Restatement (Second) of
The issue giving rise to the heated choice-of-law debate in the parties' briefs is whether the law applicable to this case imposes a duty that would allow for "take-home" liability of the sort contemplated by Brenda's claims that she, a party not employed by and with no direct relationship to Defendants, was harmed by beryllium carried home by others who were so employed. Sitting as it does in Pennsylvania, with jurisdiction by way of diversity, this Court applies Pennsylvania's choice-of-law rules. See Pac. Employers Ins. Co. v. Global Reinsurance Corp. of Am., 693 F.3d 417, 432 (3d Cir.2012). Under Pennsylvania choice-of-law, the court first asks whether there is an actual conflict between the laws of the states involved; if not, no analysis is necessary and the states' laws are interchangeable. Hammersmith v. TIG Ins. Co., 480 F.3d 220, 229-30 (3d Cir.2007). If there is a conflict, the court asks whether it is a true or false conflict or an unprovided-for situation. Id. at 230. If it is a true conflict, the court asks which state has the greater contacts and interest in seeing its law applied. Id. at 230-31. In unprovided-for situations, where neither state has an interest, traditional choice-of-law rules based on the type of action apply. Id. at 230 n. 9. If it is a false conflict, meaning "only one jurisdiction's governmental interests would be impaired by the application of the other jurisdiction's laws," the law of the state with an interest applies. Id. at 229-30 (quoting Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir.1991)).
In classifying true and false conflicts and unprovided-for situations, courts look at the policies behind each state's law and may assess whether the states' laws are defendant-protecting or plaintiff-protecting, among other considerations. See id. at 230; see also Panthera Rail Car LLC v. Kasgro Rail Corp., 985 F.Supp.2d 677, CIV.A. 13-679, 2013 WL 6253449 (W.D.Pa. Dec. 4, 2013) (finding, with a California plaintiff, Pennsylvania defendants, and a contract calling for Minnesota law, that Minnesota had no interest because its law protected defendants and defendants were not Minnesota residents, Pennsylvania did have an interest because its rule protected its resident defendants, and California also had an interest because its rule protected its resident plaintiff); Davis v. Geico Gen. Ins. Co., 957 F.Supp.2d 544 (M.D.Pa.2013) (explaining that if all states were understood to have a general interest in seeing their law applied, the true/false conflict analysis would be unnecessary and meaningless, and reasoning that Delaware had no interest in applying its rule preventing recovery of attorney fees to protect an out-of-state defendant insurance company); Reinert v. Nationwide Ins. Co., CIV.A. 12-1094, 2013 WL 1311097 (E.D.Pa. Apr. 2, 2013) (finding a false conflict in a suit by Pennsylvania citizens against an insurer related to a car accident that occurred in North Carolina, and defining Pennsylvania's interest as controlling insurance costs and North Carolina's interest as protecting the motoring public).
Moving on, the Court must attempt to define the states' interests to determine whether they are truly in conflict. As noted, Pennsylvania has not spoken for itself on this issue, so its interest is at best uncertain and not particularly strong. The Delaware court that considered the issue reasoned that given the limited or non-existent relationship between an employer landowner and employees' spouses or others that may come into contact with employees, the "economically infeasible" consequences of imposing potentially limitless take-home liability make such a duty unreasonable. See In re Asbestos Litig. It is reasonable to conclude that if Pennsylvania would indeed reject take-home liability, it would do so in order to curtail the unpredictable and possibly vast costs that would otherwise be borne by entities such as Defendants Accuratus and Brush. That is, Pennsylvania law embodies a defendant-protecting rule. New Jersey, of course, has spoken on this issue. The Olivo court noted that the greater flexibility of New Jersey's premises liability law is designed to effect its "fundamental purpose ... to deter conduct that creates an unreasonable risk of injury to others." 895 A.2d at 1148 (quoting Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 688 A.2d 1018, 1030 (1997) (Stein, J., dissenting)). The New Jersey interest, therefore, is not merely plaintiff-protecting but also risk-deterring.
New Jersey's plaintiff-protecting interest is not active in this case involving Pennsylvania plaintiffs, but its interest in deterring dangerous conduct by these particular New Jersey-located defendants, who might pose a risk to the New Jersey public, is fully present. Juxtaposition of this express New Jersey conduct-deterring rule with Pennsylvania's silent defendant-protecting rule reveals that the case involves a false conflict. If New Jersey law is applied, no Pennsylvania defendants will be subject to more liability than their state desires, but if Pennsylvania law applies, New Jersey will lose the opportunity to deter risky activity within its own borders. The Court will therefore apply New Jersey law on the issue of negligence and take-home liability in this case.
The Olivo opinion does, however, make several more restrictive statements. The court speaks of foreseeability of "harm to a particular individual." Id. at 1148. And even when the harm to the particular plaintiff is foreseeable, the imposition of a duty is tempered by "considerations of fairness and policy," id. at 1148; those considerations counteract the potential for "limitless exposure to liability," id. at 1150. Thus the duty the court ultimately recognized was fairly narrow and tied to the facts of the case, "focused on the particularized foreseeability of harm to the plaintiff's wife, who ordinarily would perform typical household chores that would include laundering the work clothes worn by her husband." Id. A restrictive reading of Olivo has already been employed in this case, in Judge Jones's orders denying remand (Docket # 35 and # 47) based on the lack of a colorable claim against prior Defendant Tretter. Because Tretter's connection with Plaintiffs was through Accuratus, and because of the timeline, the only causal routes from Tretter to Brenda are either through Paul, before Brenda was married to or lived with him, or through Altemose, to whom Brenda was of course never married. Judge Jones held that the Olivo rule of take-home liability for clothes-handling spouses could not be extended to cover either a non-spouse, non-connubial roommate (Brenda's relation to Altemose) or a non-cohabiting, unmarried romantic partner (Brenda's relation to Paul when he worked at Accuratus).
The Court will not disrupt the sound reasoning that has already been applied in this very case, and the logic that applied to Tretter applies equally to Accuratus itself. While an employer working with beryllium might foresee potential danger to mere roommates and visitors, the considerations of policy and fairness noted by the Olivo court demand that take-home liability be reasonably limited. And as far as Plaintiffs' allegations that
The choice-of-law issues on these claims are not directly briefed. Brush argues Plaintiffs' pleading of Restatement (Second) of Torts § 402A means they accept Pennsylvania law because New Jersey has a special products liability statute, but Plaintiffs point out that there is an exception for exposure to toxic chemicals, in which cases New Jersey applies common law. Brush's reply accepts the toxic exposure exception but argues that New Jersey's common law actually differs from Pennsylvania's. There is no further discussion because Brush thinks Pennsylvania applies simply as a result of the way the claim is pled, and Plaintiffs think Pennsylvania and New Jersey are the same.
Pennsylvania employs § 402A, see Kimco Dev. Corp. v. Michael D's Carpet Outlets, 536 Pa. 1, 637 A.2d 603, 606 (1993) (citing Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966)),
Restatement (Second) of Torts § 402A (1965). New Jersey employs slightly altered language, having "substituted the phrase `reasonably fit, suitable and safe' for `unreasonably dangerous.'" Brown v. U.S. Stove Co., 98 N.J. 155, 484 A.2d 1234, 1246 n. 1 (1984) (Schreiber, J., concurring). While that difference in standard may make a difference later in this case, the elements at issue at this stage — namely, whether liability attaches only when products have been sold or distributed into the stream of commerce and whether Brenda was and legally needs to be an intended user or consumer — seem to be common to both states' approaches (as well as the Third Restatement). Because no actual conflict presents itself, no further choice-of-law analysis is required.
For liability to arise, the language of § 402A suggests the product must have left the defendant — specifically, been sold and moved on to the user or consumer. See Restatement (Second) of Torts § 402A ("One who sells any product ..."; "it is expected to and does reach the user or consumer ..."). That is the key holding of Ettinger v. Triangle-Pacific Corp., 799 A.2d 95 (Pa.Super.Ct.2002). In that case,
Contrary to Plaintiffs' contention, Donoughe v. Lincoln Electric Co., 936 A.2d 52 (Pa.Super.Ct.2007), does not alter the Ettinger analysis with respect to this case. In Donoughe, the defendant company manufactured welding rods containing asbestos and sold them to a railroad; the plaintiff worked for the railroad and may have been exposed to asbestos, in part, when he scraped away slag formed by using the welding rods. Id. at 57, 67. The court held that § 402A liability was proper, because while the slag was not itself the "product" sold by the defendant manufacturer, it was "the expected and inevitable partial metamorphosis of the product that they did manufacture." Id. at 67. There was no question that the defendant had completed manufacturing the welding rods and sold them to the railroad, so the relevant aspect of the Ettinger ruling was not even implicated in the Donoughe analysis.
Applied generally to the present case, Donoughe means that when beryllium particulate comes off a material that has been completed and sold when that material is being used, even if it is being used by another company in a later manufacturing process, strict liability may attach. But Ettinger still means that beryllium particulate that comes off a material during the manufacture of that material before it is completed and sold will not create strict liability. Although the Amended Complaint does not explain precisely what Brush sold to Accuratus or what processes it went through at Accuratus, there is an allegation that some beryllium products were sold by Brush to Accuratus and that Paul or Altemose may have brought home particulate generated during the use of those beryllium products in some further manufacturing at Accuratus. So the beryllium that reached Brenda could have come from: Brush materials during their manufacture at Brush; Brush products during their use in additional processes at Accuratus; and/or Accuratus materials during their manufacture at Accuratus. So there could be no strict products liability for Accuratus at all, because none of the potential exposure came from any finished and sold Accuratus product. There could be no strict liability for Brush
Even when a product is completed and sold, though, liability under § 402A only extends to "the user or consumer." Plaintiffs apparently concede that Brenda does not qualify as a user or consumer, arguing instead that the Court should apply the Third Restatement, which thoroughly reformulates the strict products liability standard and more flexibly imposes liability for "foreseeable risks of harm." Restatement (Third) of Torts: Prod. Liab. § 2 (1998).
Whether the products at issue underwent substantial change need not be addressed in detail at this stage, as that is a factual question for the jury or possibly summary judgment. See Rooney v. Fed. Press Co., 751 F.2d 140, 144 (3d Cir.1984) ("Under Pennsylvania law, only unforeseeable modifications in a product will insulate its manufacturer from strict products liability, and the question whether such a substantial change has been made is a factual issue to be determined by a jury."); Merriweather v. E.W. Bliss Co., 636 F.2d 42, 46 (3d Cir.1980). The Amended Complaint does allege there was no substantial change, so resolution of that factual question on the motion to dismiss would be inappropriate.
In sum, the above analysis dictates that the strict products liability claim against Accuratus be dismissed with prejudice.
First, the separate claims for abnormally dangerous activity and ultrahazardous activity are indeed duplicative. Plaintiffs may plead in the alternative, which is why the Court is not persuaded by Defendants' argument that the allegations of negligence and lack of due care preclude claims for abnormally dangerous activity based on the futility of due care.
No choice-of-law analysis is required with respect to the abnormally dangerous activity issue, because both Pennsylvania and New Jersey use Restatement (Second) of Torts §§ 519 and 520. See United States v. Union Corp., 277 F.Supp.2d 478, 493 (E.D.Pa.2003); T & E Indus., Inc. v. Safety Light Corp., 123 N.J. 371, 587 A.2d 1249, 1259 (1991).
The law imposes liability even where a defendant "has exercised the utmost care" if the defendant "carries on an abnormally dangerous activity." Restatement (Second) of Torts § 519 (1977). Several factors help courts determine whether an activity is abnormally dangerous:
Restatement (Second) of Torts § 520. The doctrine has traditionally been applied to a narrow set of activities, specifically blasting and the keeping of wild animals. See Roth v. NorFalco, LLC, CIVA 1:06-CV-01452, 2010 WL 1754618 (M.D.Pa. Apr. 29, 2010) (citing Albig v. Mun. Auth. of Westmoreland Cnty., 348 Pa.Super. 505, 502 A.2d 658, 662 (1985)), aff'd, 651 F.3d 367 (3d Cir.2011).
But none of the cases Brush cites support a categorical rule that the doctrine must be limited to blasting or that it cannot apply to something like the manufacture of beryllium products. In Villari v. Terminix International, Inc., 663 F.Supp. 727, 728-29, 731-32 (E.D.Pa.1987), the plaintiff homeowners were harmed by pesticides the defendant spilled while treating their home, and the court found there was
Further, while the cases in Brush's lengthy footnote find that various activities involving toxic materials do not constitute abnormally dangerous activities, most of them do so on the basis of weighing the § 520 factors as applied in the particular cases, especially § 520(c).
In any event, an assessment of the factors requires development of the facts, even though it is an issue for the court to decide: "Whether the activity is an abnormally dangerous one is to be determined by the court, upon consideration of all the factors listed in this Section, and the weight given to each that it merits upon the facts in evidence." Restatement (Second) of Torts § 520 cmt. 1 (emphasis added). Further, Plaintiffs' citations demonstrate that there are at least some cases finding activities involving toxic substances to be abnormally dangerous, which undermines a categorical rule to the contrary. See, e.g., Banks v. Ashland Oil Co., 127 F.Supp.2d 679, 680-81 (E.D.Pa.2001) (denying a motion to dismiss an abnormally dangerous activity claim where defendant allegedly discharged hazardous vapors from a chemical plant, notably because "the court lack[ed] a sufficiently developed record to evaluate" the § 520 factors).
Development of the factual record is necessary in this case to assess the § 520 factors. While it is apparent that the harm that may occur is very serious, it is not sufficiently clear how likely that harm is, how common and valuable to society the manufacture of beryllium products is, and of course whether reasonable care could eliminate the risks. These issues and others (such as the appropriate way of defining the "activity" at issue, i.e., "manufacturing beryllium products" or "manufacturing beryllium products without particular safeguards"), may yet rule out a finding of abnormally dangerous activity in this case, but the claims should not be precluded at this juncture.
Because New Jersey law applies to the negligence claims, but a duty nevertheless cannot extend to Brenda either via Paul prior to the marriage or via Altemose, Count I (negligence against Accuratus) is dismissed with prejudice, and Count V (negligence against Brush) is not dismissed. Because strict products liability requires a completed and sold product, Count IV (strict products liability against Accuratus) is dismissed with prejudice. Count VIII (strict products liability against Brush) is not dismissed, though its scope is limited and forthcoming guidance from the Pennsylvania Supreme Court may affect its viability. Because the claims for strict liability for ultrahazardous activity are interchangeable with and add nothing to the claims for abnormally dangerous activity, Counts III (ultrahazardous activity against Accuratus) and VII (ultrahazardous activity against Brush) are dismissed with prejudice. Finally, because more facts are necessary to determine whether Defendants' activities were abnormally dangerous, Counts II (abnormally dangerous activity against Accuratus) and VI (abnormally dangerous activity against Brush) are not dismissed. Counts IX (exemplary damages) and X (loss of consortium) are not challenged except in that they depend upon the other claims; they are therefore not dismissed and may proceed to the extent they derive from the other surviving claims.
