Arianna Molina, by her Parents and Natural Guardians, Melissa Madrid and Jacob Molina and Melissa Madrid and Jacob Molina, individually, Plaintiffs,
On Semiconductor Corporation and Semiconductor Components Industries d/b/a On Semiconductor, Defendant.
Submitted: December 28, 2012
Date Corrected: August 2, 2013
Upon Defendants On Semiconductor Corporation and Semiconductor Components Industries d/b/a On Semiconductor's Motion to Dismiss Plaintiffs' First Amended Complaint
Steven J. Phillips, Esquire (pro hac vice) (argued), Phillips & Paolicelli, LLP, Aryeh Taub, Esquire, Levy, Phillips & Konigsberg, LLP, (pro hac vice), J. Zachary Haupt, Esquire, Bifferato LLC Attorneys for Plaintiffs.
Kevin J. Connors, Esquire, (argued), Marshall, Dennehey, Warner, Coleman & Goggin, Attorneys for Defendants.
Jan R. Jurden, Judge
Before the Court is Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint pursuant to Super. Ct. Civ. R. 12(b)(6). Defendants move to dismiss on the following grounds: (1) there is no viable cause of action for preconception injury under Arizona law; (2) Plaintiffs have failed to plead the essential elements of duty and causation; and (3) Plaintiffs' claims are barred by the exclusivity provision of Arizona worker's compensation law. For the reasons that follow, Defendants' motion is DENIED.
The minor plaintiff, Arianna Molina ("Arianna"), was born on September 11, 2003 with severe birth defects. Arianna suffers from muscular dystrophy, is confined to a wheelchair, requires a tracheotomy and ventilator to breathe, and requires a feeding tube to eat. Arianna's mother, Melissa Madrid ("Mother"), was employed by Defendants and worked at their semiconductor manufacturing and electrical measuring instrument manufacturing facilities located in Arizona from 1999 through 2003.
During her employment with Defendants, Mother worked in and around "clean rooms" and elsewhere at Defendants' Phoenix, Arizona, facilities where semiconductor wafers, microchips, and boards were being manufactured for use in computers. According to Plaintiffs, Defendants designed, manufactured, distributed, sold, supplied, and installed allegedly hazardous and reproductively toxic chemicals or substances for use in Defendants' clean rooms and elsewhere, where the Defendants utilized them in the manufacturing process of semiconductor computer wafers, chips, and boards. Further, according to Plaintiffs, Defendants not only failed to utilize proper measures to prevent their workers, particularly female workers of childbearing age and pregnant workers, from being exposed to these reproductively toxic chemicals and substances, but they also failed to warn their workers of the dangerous characteristics of the chemicals and substances and the health threats that they posed, failed to test and study the chemicals to fully appreciate their capacity to cause reproductive harm, made representations "incorrectly and untruthfully" that the chemicals and substances were safe and suitable for use, assured their workers, including Mother, that adequate protections were in place to prevent any harm to them or their future offspring, and concealed from Mother that contact with these chemicals and substances posed severe health hazards to her offspring. Plaintiffs allege that Defendants knew or should have known that the chemicals to which Mother was allegedly exposed can cause reproductive hazards, including spontaneous abortions, stillbirths, malformations, birth defects, early childhood cancers, and other neurological, developmental, and degenerative conditions.
Plaintiffs allege that as a consequence of Mother's employment, Mother was exposed, and Arianna was exposed in utero, to these reproductively harmful chemicals and substances which caused physical injury to Arianna. Plaintiffs assert claims of: (1) negligence, (2) premises liability, (3) strict liability, (4) abnormally dangerous/ultra hazardous activity, (5) willful, wanton, and intentional conduct, (6) breach of an assumed duty, and (7) loss of consortium.
III. STANDARD OF REVIEW
On a 12(b)(6) motion to dismiss, the Court must accept every well-pled allegation as true and draw all reasonable inferences in the non-movant's favor.Allegations are well-pled if they place a defendant on notice of the claim at issue.Dismissal should be denied unless "it appears to a certainty that the plaintiff could not recover under any reasonably conceivable set of circumstances susceptible of proof."
IV. CHOICE OF LAW
Defendants maintain that Arizona substantive law governs this action, but Plaintiffs argue that choice of law is "premature" because there has been no fact discovery. Plaintiffs allege in the FAC that Arianna and her parents reside in Arizona, Mother was employed by Defendants in Arizona at the time Arianna was conceived, Mother worked for Defendants in Arizona from 1999 until her 38th week of her pregnancy with Arianna in 2003, Mother and Arianna's exposures occurred in Arizona, and Arianna was born in Arizona. The Court disagrees that choice of law is premature. Based ...