March 27, 2013
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 on the well-pled allegations in Plaintiffs' FAC, there is little question that Arizona substantive law applies to Plaintiffs' claims.
A. Does Arizona Law Impose a Duty on Employers to the Unborn Children of Employees?
Defendants argue that under Arizona law employers owe no duty to the unborn children of their employees. While Plaintiffs acknowledge that no Arizona court has addressed this issue directly, they point to the Arizona Constitution and decisions of the Arizona Supreme Court which expressly recognize that tortious conduct preceding conception can give rise to an actionable negligence claim, and note that unlike the minor plaintiff in Smith v. Freescale Semiconductor, Inc., Arianna was exposed in utero.
The text of the Arizona Constitution is "broad" and "unambiguous" and contains a specific clause expressly prohibiting abrogation of the right to recover damages. As illustrated below, the Arizona Supreme Court has consistently held that the right to bring a tort claim is a fundamental right and has struck down laws that interfere with that fundamental right.
In Kenyon v. Hammer,  the Arizona Supreme Court allowed a wrongful death claim on behalf of a stillborn child where the wrongful conduct causing the injury occurred years before the child's conception. As a result of an erroneous entry in the mother's chart, the mother's doctor failed to administer RhoGAM to the mother during the birth of her first child. Based on the mother's blood type, the administration of RhoGAM was necessary to protect the mother's future offspring from serious injury or death. Five years later, the mother became pregnant again. The earlier failure to receive RhoGAM resulted in her second child being stillborn. The parents brought a wrongful death claim on behalf of their stillborn child against the doctor, vicariously, for his nurse's negligence five years prior to their second child's conception. The lower courts dismissed the action on statute of limitations grounds. The Arizona Supreme Court reversed and allowed the action to proceed, noting that the right to bring and pursue the action was a "fundamental right" guaranteed by the Arizona Constitution, and, therefore, a limitations period that effectively abrogated that right was unconstitutional.
In Walker v. Mart,  the issue was whether Arizona recognized a cause of action for wrongful life. There, a mother-to-be contracted German measles (Rubella) in her first trimester. Her doctor failed to inform her of the resulting risks to her unborn child. Had the mother been informed of the risks, she would have aborted the fetus. The child was born with Rubella Syndrome, marked in her case by severe birth defects. The mother brought a claim for "wrongful birth, " and a claim for "wrongful life" on behalf of the child alleging that but for the doctor's negligence, mother would have terminated the pregnancy.
Noting that Arizona law allows parents who establish that a doctor's negligence prevented them from exercising their right to terminate a pregnancy, to bring a "wrongful birth" claim,  the Arizona Supreme Court focused on whether a child born under the circumstances in Walker could bring a claim for "wrongful life." The Court in Walker held that such a claim sounded in negligence, and therefore analyzed the child's claim under traditional principles of Arizona negligence law. The Court in Walker held that if the attending physicians had been negligent in rendering prenatal care and thereby injured the child in utero, the child could bring a tort claim for damages caused by the doctors' negligence.The Walker Court expressly held that the duty owed to the parents "inures derivatively" to the child who was in utero when the wrongful conduct occurred.
In Myers v. Hoffman-La Roche, Inc.,  a child, through her mother, sued the manufacturer of Accutane for injuries she allegedly sustained as a result of her mother's use of Accutane while pregnant. The Arizona Court of Appeals held in Myers that the child's claims were not barred by the wrongful life doctrine because she sued not for "wrongful life, " but rather, for damages she sustained in utero, as a result of defendants' tortious acts. The Court in Myers expressly recognized that a child allegedly injured in utero by tortious conduct of another may bring a claim under Arizona law.
In Summerfield v. Superior Court,  at issue was whether the parents of a viable fetus, who was stillborn as a result of alleged medical malpractice, could bring an action for wrongful death against the doctor whose negligence allegedly caused the death. The trial court granted defendants' motion to dismiss, holding that no such common law right existed and a viable fetus was not a "person" under Arizona law. Vacating the trial court's decision, the Arizona Supreme Court held that under Arizona law the defendant owed a duty to the mother and the fetus. According to the Arizona Supreme Court in Summerfield:
The majority rule, which now recognizes that a death action will lie under the circumstances present here, acknowledges that the common law has evolved to the point that the word "person" does usually include a fetus capable of extrauterine life. The majority also recognizes that the common law now holds that if the fetus survives it may recover for injuries sustained in the womb. The common law now also permits a death action if the infant survives birth and then dies from injuries sustained in the womb.
The Arizona Supreme Court's decision in Summerfield was premised in part on:
Evidence of an overall legislative policy of compensation and protection [which] militates in favor of construing the wrongful death statute to give parents a remedy when their viable child is negligently killed . . . such a narrow construction of "person" would also run contrary to an apparent legislative objective of providing protection for the fetus. It seems preferable . . . to construe the statute in light of the evil(s) it was designed to remedy.
The Defendants' argument that they owe no duty to Arianna under Arizona law fails. Based upon the Arizona Constitution and the relevant case law, the Court finds that under the circumstances presented here,  Arianna has a "fundamental" right to bring a claim for her alleged injuries.
B. Have Plaintiffs Adequately Pled a Breach of Assumed Duty? Because the Court finds that Defendants owed a duty to Arianna, it need not reach this question.
C. Does the Arizona Worker's Compensation Exclusivity Provision Preclude Arianna's Claims?
As the defendants in Peters argued, Defendants here maintain that workers' compensation benefits are the exclusive remedy available to Plaintiffs. This argument fails. First, Peters was decided under Texas law, not Arizona law, and thus is not controlling here. Second, unlike the minor plaintiff's claims in Peters, Arianna's claims involve in utero exposure. Arianna, unlike the child in Peters, was directly exposed to chemicals during her gestation. Third, the Arizona Worker's Compensation laws do not and cannot preclude Arianna's claims. Not only does Defendants' construction of the Arizona Worker's Compensation Law violate the Arizona Constitution,  but Arianna was never an employee of Defendants, and the fact that her mother was an employee does not convert Arianna's personal injury claims for in utero exposure into a derivative claim under Arizona law.
As noted above, the Arizona Constitution guarantees an individual's fundamental right to bring a common law tort action. This right may not be abrogated by statute unless constitutionally authorized. Thus, before the Arizona legislature could even create the Arizona Worker's Compensation Law, it had to amend the Arizona Constitution. That amendment, Article 18, § 8, authorized the Arizona legislature to:
enact a workmen's compensation law . . . by which compensation shall be required to be paid to any such workman, in case of his injury and to his dependents, as defined by law, in case of his death, by his employer . . . provided that it shall be optional with any employee engaged in any such private employment to settle for such compensation, or to retain the right to sue said employer . . . .
According to the Supreme Court of Arizona, the intent of "unique constitutional provisions" such as this "was to enact a 'different and more advanced' policy . . . 'which made it possible to enforce in court a claim for personal injury or death without the necessity of overcoming practically insurmountable defenses.'"Under the Arizona Constitution, a covered employee may choose between worker's compensation and the tort system. When an injury falls within the scope of the Worker's Compensation Law, the Constitution allows abrogation of the injured worker's tort recovery only if the worker elected to accept worker's compensation. Arianna is not an employee and thus obviously never had the ability to choose between accepting worker's compensation or pursuing a tort recovery. It would be unconstitutional to deprive Arianna of her tort claim under the circumstances presented here. Arianna's constitutional, fundamental right to bring an action for personal injuries cannot be abrogated by the Arizona Worker's Compensation Law Exclusivity Provision.
D. Have Plaintiffs Adequately Pled Causation?
Plaintiffs allege, inter alia, in the FAC that during Mother's employment, Arianna was wrongfully exposed in utero to reproductively hazardous chemicals.Plaintiffs further allege that those exposures proximately cause injury to Arianna. Under Arizona Law, foreseeability determines whether a defendant proximately caused injury to a plaintiff. Plaintiffs' allegations are sufficient to plead causation under Arizona law.
E. Have Plaintiffs Adequately Pled a Claim for Strict Liability?
Defendants seek dismissal of Plaintiffs' strict liability claim, arguing that Plaintiffs failed to allege Defendants were in a chain of distribution resulting in a sale of the product to the consuming public and that Defendants placed the allegedly hazardous chemicals Mother worked with into the stream of commerce.But Plaintiffs have alleged that Defendants "distributed, sold, [and] supplied" the hazardous toxic chemicals for use in Defendants' clean rooms "and elsewhere . . . ." Moreover, the cases upon which Defendants rely do not support dismissal of Plaintiffs' strict liability claim at this stage. Plaintiffs have pled a strict liability claim sufficient to withstand a motion to dismiss.
F. Have Plaintiffs Adequately Pled a Claim for Abnormally/Ultrahazardous Activity?
Arizona follows the Restatement (Second) of Torts § 519 and § 520 with respect to strict liability for abnormally dangerous activity. Section 520 provides:
In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.
The Comment to Section 520 expressly provides that it is not necessary that each of these factors be present, "especially if others weigh heavily." Plaintiffs allege in the FAC: the high risk of injury presented by exposure to these chemicals; the likelihood that resulting harm from exposure will be significant; the chemicals to which Mother and Arianna were exposed are highly toxic (and thus, drawing a rational inference, are not a matter of common usage); and the activities causing exposure were abnormally dangerous. Plaintiffs have sufficiently pled a claim for abnormally dangerous/ultrahazardous activity under Arizona law.
G. Have Plaintiffs Adequately Pled a CERCLA Claim?
The Court will not address Defendants' arguments on this point because Plaintiffs assert no CERCLA claim.
H. Have Plaintiffs Adequately Pled a Premises Liability Claim?
Defendants argue Plaintiffs' premises liability claim is barred by the Exclusivity Provision of the Arizona Worker's Compensation Law. The Court disagrees. Defendants argue (again) that they owed no duty to Arianna. Again, the Court disagrees. Under Arizona law, the particular duty of care owed by a possessor of land to an entrant on its land is determined by the entrant's status as an invitee, licensee, or trespasser. Plaintiffs allege that Arianna's mother was on the Defendants' premises because she worked for them. That is indisputably a "purpose directly . . . connected" with the Defendants' "business dealings."Under Arizona law, that makes her a "business visitor." The fact that Arianna's mother continued to work for Defendants while she was pregnant with Arianna benefited the Defendants. Defendants impliedly "invited" Arianna to remain on their premises "for a purpose directly or indirectly connected with business dealings" with them. Arianna was on Defendants' premises as a business visitor/invitee and, therefore, as Plaintiffs correctly allege, Defendants owed her a duty to make the premises reasonably safe. Plaintiffs have adequately pled a claim for premises liability under Arizona law.
I. Have Plaintiffs Adequately Pled an Independently Viable Claim for Willful, Wanton and Intentional Conduct?
Defendants argue that Plaintiffs' allegations of willful and wanton conduct do not assert an independent cause of action, and their allegations of intentional conduct fail for lack of specificity. The Court finds the Plaintiffs have adequately pled willful and wanton conduct on the part of the Defendants. With respect to Defendants' claim that Plaintiffs' allegations of intentional conduct lack the requisite specificity argument, the Court agrees. However, given the procedural history of this case,  the Court will grant Plaintiffs leave to amend their intentional tort claims.
J. Have Plaintiffs Pled a Viable Claim for Loss of Consortium?
Under Arizona law, parents may maintain a cause of action for loss of their child's consortium when the child suffers a severe, permanent and disabling injury rendering the child unable to exchange love, affection, care, comfort, companionship and society in a normally gratifying way. Plaintiffs have adequately pled a claim for loss of consortium.
For the reasons discussed above, Defendants' Motion to Dismiss is DENIED and the Court hereby grants Plaintiffs leave to amend their intentional tort claims. Plaintiffs Second Amended Complaint shall be filed within 20 days of the date of this opinion.
IT IS SO ORDERED.