JACOB MEYERS, by his natural mother and next friend, JANNA LYNN MEYERS, and individually, Plaintiffs,
INTEL CORPORATION, Defendant.
Date Submitted: July 10, 2013
Upon Defendant Intel Corporation's Motion to Dismiss Plaintiffs' First Amended Complaint.
Steven J. Phillips, Esquire (pro hac vice) (argued), Ari L. Taub, Esquire (pro hac vice) Phillips & Paolicelli, LLP, Attorneys for Plaintiffs.
Patrick Dennis, Esquire (pro hac vice) (argued), Somers S. Price, Jr., Esquire, Potter Anderson & Corroon LLP, Attorneys for Defendant.
Jan R. Jurden, Judge.
Before the Court is Defendant's 12(b)(6) Motion to Dismiss Plaintiffs' First Amended Complaint for failure to state a claim. Assuming that Colorado law controls, Defendant moves to dismiss because Plaintiffs' claims are not recognized by Colorado, excluded by Colorado's Premises Liability Statute, and/or Plaintiffs failed to allege required elements of their claims. For the reasons that follow, Defendant's motion is DENIED.
Jacob Meyers ("Jacob") was born in Colorado on April 19, 2002 with severe birth defects,  including partial agenesis of the corpus callosum and hydrocephalus. Plaintiffs allege Jacob's birth defects were caused by "wrongful exposures to hazardous, genotoxic and reproductively toxic substances, pollutants or contaminants, " during Jacob's parents' ("Parents") employment with Intel, especially while Jacob was in utero. Although only Jacob's mother, Janna Meyers ("Mother"), is a party plaintiff, both Parents worked for Defendant at its semiconductor manufacturing facilities in Oregon and Colorado.
During Parents' employment with Intel, they worked in and around "clean rooms" and elsewhere at Intel's facilities where semiconductor "wafers, " "microchips, " and "boards" were manufactured for use in computers. Plaintiffs allege Defendant exposed Parents and Jacob in utero to several allegedly "reproductively toxic chemicals, processes, and/or substances, " including gallium arsenide and trichloroethylene,  and that several chemicals used by Defendant are known in the semiconductor industry to cause reproductive harm and lead to "adverse reproductive outcomes, " such as spontaneous abortion, still birth, malformations, and birth defects. Plaintiffs further allege their exposure and Jacob's resulting injuries were foreseeable, and could or should have been anticipated by Defendant.
Among other things, Plaintiffs allege Defendant: failed to configure ventilation systems to protect against inhalation and/or skin exposure; failed to warn its 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 its workers, including Parents, that adequate protections were in place to prevent any harm to them or their future offspring; failed to meet "good occupational medicine practice" obligations within the semiconductor industry; and, concealed from Parents that contact with these chemicals and substances posed severe health hazards to their offspring.
Plaintiffs expressly state in the FAC that they "do not allege direct injuries or causes of action by the Parents or [Mother]. Rather [Mother's] claims are  derivative of the direct claims by [Jacob] and against Defendants [sic]." Further, Plaintiffs expressly allege "[a]ny exposure by the Parents or [Mother …] that contributed to, caused or resulted in the injuries to [Jacob] did not manifest damage to [Mother] until her child was born with injuries caused by the exposures."
Based on the above exposure to Parents and Jacob in utero, 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. PROCEDURAL HISTORY
Plaintiffs filed their initial complaint on July 1, 2011. On April 5, 2012, Plaintiffs filed an amended complaint and, anticipating Defendant's motion to dismiss, the parties submitted a proposed briefing schedule. The Court accepted the parties' proposed schedule,  and briefing concluded on August 10, 2012. The Court heard oral argument December 17, 2012, and deferred decision pending a pertinent ruling from the Colorado Supreme Court. The Colorado Supreme Court issued its decision in Larrieu v. Best Buy Stores on June 24, 2013, clarifying the application of Colorado's premises liability statute. The parties submitted their supplemental arguments regarding that ruling on July 10, 2013 and this matter is now ripe for decision.
IV. PARTIES' CONTENTIONS
Defendant argues that because Parents worked at Defendant's Colorado Springs facility before, during, and after Jacob's in utero exposure, Colorado law governs Plaintiffs' claims. On that premise, Defendant argues that Mother's claim for loss of filial consortium fails because Colorado law does not recognize such a claim. Defendant also argues that Plaintiffs' sole means of recovery is a claim under the Colorado PLS and all other common law claims against Defendant are preempted by the PLS. As to the PLS, Defendant argues that its liability, at most, is limited to the statutory duty owed to a licensee based on Jacob's in utero status at the Colorado Springs site,  and ...