Syerra Rodriguez, by her natural parents and next friends, Andre Rodriguez and Anissa Rodriguez, and individually, Plaintiffs,
Intel Corporation, Motorola Solutions, Inc . (f/k/a Motorola, Inc.), Celerity Group, Inc., Kinetic Systems, Inc., Biokinetics, Inc., Foster Wheeler Biokinetics, Inc., Kinetic Systems, Inc., and XYZ Corporations I-III, Defendants.
Date Submitted: November 6, 2013
J. Zachary Haupt, Esquire, Richard S. Gebelein, Esquire, Bifferato, LLC, Victoria Phillips, Esquire, (pro hac vice), (argued), Ari Taub, Esquire, (pro hac vice), Phillips & Paolicelli, LLP, Attorneys for Plaintiffs.
Somers S. Price, Jr., Esquire, Potter, Anderson & Corroon, LLP, Patrick W. Dennis, Esquire (pro hac vice), (argued), Perlette M. Jura, Esquire, (pro hac vice), (argued), Gibson, Dunn & Crutcher, LLP, Attorneys for Intel Corporation.
Frederick L. Cottrell, Esquire, Richards, Layton & Finger, P.A., Stacey Martinez, Esquire, (pro hac vice), (argued), Fulbright & Jaworski, LLP, Attorneys for Motorola Solutions, Inc. f/k/a Motorola, Inc.
Jan R. Jurden, Judge
This is a "clean room" case involving Plaintiff Father's alleged exposures to reproductively harmful chemicals while working as an independent contractor at the premises of Defendants Intel Corporation ("Intel") and Motorola Solutions, Inc. ("Motorola"). While the case centers on Plaintiff Father's exposures, the claims are based on Minor Plaintiff's several birth defects, which Plaintiffs allege are the result of Plaintiff Father's exposures. Defendants Intel and Motorola move to dismiss Plaintiffs' First Amended Complaint ("FAC"), arguing that Plaintiffs fail to plead a legally viable theory of causation and fail to state a claim under Arizona law. For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED.
Minor Plaintiff Syerra Rodriguez ("Syerra") was born July 18, 1998, with severe birth defects, including Crouzon's syndrome, acanthosis nigricans, coronal craniosynostosis, bilateral choanal atresia, hydrocephalus, chiari malformation, and thoracic spinal asymmetry. Plaintiffs allege that Syerra's injuries were caused by her father's prolonged exposure to reproductively toxic chemicals while working as a sheet metal apprentice at semiconductor manufacturing facilities owned, operated, and controlled by Intel and Motorola. Syerra's father, Plaintiff Andre Rodriguez ("Andre"), was not an employee of Intel or Motorola, rather he was an independent contractor employed by J.B. Rodgers, a company with which these Defendants contracted to perform installation, maintenance, and other services at their facilities.
Throughout his work at Intel and Motorola, Andre frequently worked in and around fabrication areas and elsewhere where wafers, microchips and boards were manufactured. Plaintiffs allege that "[n]o generalized ventilation system was configured explicitly to protect the workers from inhalation or skin exposure to the liquids, vapors, gases and fumes from the chemicals – in clean rooms or elsewhere at Intel or Motorola." Andre claims that as a consequence of his work in or around these areas, he was exposed to reproductively toxic chemicals and substances including, but not limited to, ethylene and propylene-based glycol ethers, fluorine compounds, chlorinated compounds, arsenic compounds, organic solvents (including toluene and acetone) and radio frequency and ionizing radiation.
Plaintiffs filed their FAC on April 24, 2013, alleging, inter alia: Intel, Motorola and J.B. Rodgers knew and deliberately withheld from Andre that the substances to which he was exposed posed severe hazards to the offspring of workers having dermal or respiratory contact with them;Defendants failed to warn Andre of the dangers; Defendants failed to perform adequate testing and provide appropriate protection for Andre; Defendants breached express warranties regarding the safety of the chemicals in use; Defendants assumed a duty to protect Syerra from harm by falsely reassuring her parents that the chemicals present were harmless to their future offspring; and, Andre relied on these false assurances to Syerra's detriment. Plaintiffs assert claims of negligence (Count I), premises liability (Count II), strict liability (Count III) abnormally dangerous and ultra-hazardous activity (Count IV), willful and wanton misconduct (Count V), breach of an assumed duty (Count VI), vicarious liability (Count VII), and loss of consortium (Count VIII).
Notably, Plaintiffs expressly plead in the FAC that they "do not allege or assert that [Andre] sustained any injury" and in the event that he did, "that injury was not the cause of [Syerra's] injury." Specifically, Plaintiffs allege "only [Syerra] possesses a direct right of action as a consequence of her direct injuries which arose upon" her conception,  and Parent Plaintiffs' only cause of action is for loss of consortium. Plaintiffs do not allege that Mother Plaintiff was on Defendants' premises before, during, or after Syerra's conception. Plaintiffs do not allege that Syerra was ever present on Defendants' premises while in utero.
III. DEFENDANTS' ARGUMENTS
Defendants Intel and Motorola move to dismiss Plaintiffs' case pursuant to Superior Court Civil Rule 12(b)(6). Initially, Defendants argue that Plaintiffs fail to establish a causal link between Defendants alleged tortious conduct and Syerra's injuries. Then, asserting 11 separate arguments, Defendants contend that each of Plaintiffs' claims fail as a matter of law: (1) Syerra's premises liability fails because she was never on Defendants' premises; (2) Defendants did not have a relationship with Syerra that would give rise to a duty; (3) Defendants did not assume a duty to the preconceived Syerra; (4) Intel and Motorola cannot be vicariously liable for J.B. Rogers under Arizona law; (5) Plaintiffs' allegations are vague and conclusory; (6) Arizona common law has not created nor recognized preconception torts; (7) Applying Arizona law in a way to recognize a preconception tort would violate separation of powers and would "open a Pandora's box of constitutional threats;" (8) Plaintiffs fail to state a claim for strict liability because the allegedly hazardous chemicals were not used by a member of the consuming public, but in the context of employment; (9) Plaintiffs' "abnormally dangerous activity" claim fails because Syerra was never on the premises; (10) Plaintiff Parents' loss of consortium claim fails because Syerra's claims fail; and, (11) Plaintiffs' allegations of "willful and wanton misconduct" cannot create a claim for punitive damages.
While the parties presented a thorough argument on this motion, they focused much of their time on three specific issues: (1) whether preconception tort claims are cognizable under Arizona law; (2) whether Arizona law creates a duty between employers and the future children of independent contractors; and, (3) whether Plaintiffs allege a valid theory of causation. Following oral argument, the Court requested supplemental briefing on "take home exposures." That briefing is complete and this matter is now ripe for decision.
The Court will address the three main arguments presented at oral argument, seriatim.
Delaware is a notice pleading jurisdiction. Superior Court Civil Rule 8 requires that a complaint "contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the party deems itself entitled." A "pleading need not set into detail the facts upon which it is based as long as it gives the other party fair notice of what the claim is and the grounds upon which it rests. The details can be obtained through […] discovery." "[A]ll pleadings shall be so construed as to do substantial justice.";
Superior Court Civil Rule 9(b) requires that circumstances constituting fraud and negligence be pleaded with particularity. That requirement in a toxic exposure context is satisfied when defendants are given fair notice of claims and a well-directed ...