American Airlines, Inc. ("American") rolled out a new line of uniforms for its worldwide workforce in late 2016. What it hoped would be a seamless transition was anything but. According to the amended complaint, the new uniforms created a plague of health problems for American's workforce; within weeks, employees across the company reported developing skin rashes, respiratory problems, vertigo, and other ailments. The number of complaints supposedly grew so large so quickly that American backpedaled on the rollout two months later and permitted employees to revert back to their old uniforms. Within a year, the airline announced that it would cut ties with the uniform manufacturer, Twin Hill Acquisition Company, Inc. ("Twin Hill"). In the aftermath of the rollout, eleven American employees filed suit against their employer and Twin Hill on behalf of themselves and all other American employees who have been exposed to the uniforms. Plaintiffs contend that both defendants are liable for battery and intentional infliction of emotional distress, and that Twin Hill also is liable in negligence and products liability. Plaintiffs individually seek damages and on behalf of the class seek injunctive relief, including an order requiring Twin Hill to recall the uniforms it has provided to American employees and directing both companies to establish a medical monitoring fund to mitigate any possible long-term health effects to class members. American and Twin Hill responded to the amended complaint by filing
BACKGROUND
In around September 2016, American implemented a uniform change across its worldwide workforce. Am. Compl. ¶ 2, ECF No. 14.
Shortly after the companywide rollout-"within weeks if not days"-American employees began experiencing adverse reactions to the new uniform. Id. ¶ 27. The reactions included skin rashes, ear and throat irritation, headaches, fatigue, vertigo, the triggering of various auto-immune conditions, and negative effects on endocrine and liver functions. Id. ¶ 4. The reports of adverse reactions swelled in the months that followed, so much so that two of the unions representing American flight attendants set up special task forces to address the health issues posed by the uniforms. Id. ¶ 56.
American had learned of similar reports prior to the rollout. Id. ¶¶ 28-29. Twin Hill had supplied uniforms to Alaska Airlines ("Alaska") in 2011. Id. ¶ 29. However, Alaska was forced to transition to a different vendor after almost one-third of its flight attendants reported adverse health conditions akin to those later experienced by American employees. Id. Moreover, two years before American introduced Twin Hill uniforms to its workforce, American asked a number of pilots to field test the uniforms. Id. ¶ 28. Many of those pilots reported experiencing ill effects during testing, including rashes, flu-like symptoms, headache, vomiting, and respiratory problems. Id. When those adverse reactions came to light, one of the unions representing American pilots asked American not to introduce the uniforms. Id. The union's request went unheeded. Id.
In early October 2016, about a month after American switched to Twin Hill uniforms, the airline "formally recognized" the health concerns posed by the uniforms. Id. ¶ 62. In doing so, American established a call center to address individual complaints about the uniforms and offered employees who had been adversely affected to either order replacement garments or continue wearing their old blue uniform. Id. ¶ 63. American also agreed to perform "further random testing of garments" to determine the cause of the reported symptoms. Id. A month later, in November 2016, American went a step further and announced a reversal of the uniform change. Id. ¶ 79. The airline permitted employees to obtain new grey uniforms manufactured by a company other than Twin Hill or go back to wearing their old blue uniforms. Id. ¶¶ 79-80.
Following these developments, on June 22, 2017, American announced in a letter to employees that it was terminating its relationship with Twin Hill as of 2020. Id. ¶ 87. The letter, which was signed by several American senior vice presidents, stated that "[i]t is clear we [American] need a long-term solution because the current approach simply does not work." Id. By September 2017, Twin Hill had shipped over 1.4 million garments and accessories to more than 65,000 American employees worldwide. Id. ¶ 85. The garments had been manufactured in a number of countries throughout the world, including Bangladesh, Indonesia, China, Sri Lanka, and Vietnam. Id. ¶ 76. Between September 2016 and September 2017, over 4,700 flight attendants and over 600 pilots, in addition to other cockpit crew members and service representatives, reported experiencing ill effects from Twin Hill uniforms. Id. ¶¶ 4, 57, 85. The introduction of the Twin Hill uniforms was the only single common event that occurred throughout American's workforce during that timeframe. Id. ¶ 30.
Testing has been conducted on some of the uniform pieces manufactured by Twin Hill for American. Results from those tests indicate that Twin Hill uniforms are manufactured from synthetic materials and contain "[d]etectable amounts" of several chemicals, including known and possible carcinogens, as well as chemicals known to cause the type of "auto-immune" conditions experienced by American employees. Id. ¶¶ 52, 70-74. For example, testing detected the presence of chlordane, a potent carcinogen that is banned in the United States and is known to cause migraines, respiratory problems, immune system problems, blurry vision, confusion, and intractable seizures. Id. ¶ 71. Test results also identified the presence of formaldehyde, another known carcinogen that is widely used in industrial applications. Id. ¶ 74. Chronic long-term exposure to formaldehyde by inhalation can cause a wide array of health problems ranging from skin rashes and respiratory problems to fatigue and even cancer. Id. Moreover, testing has shown that levels of two other chemicals exceed limits established by OEKO-TEX, an independent testing certification service that sets standards for allowable amounts of chemicals in clothing. Id. ¶ 53. The excess amounts were found in several of the most commonly worn clothing items among American employees, including the suiting skirts. Id. ¶¶ 53, 75.
In September 2017, eleven American employees filed the present suit against American and Twin Hill. Plaintiffs include seven flight attendants, three pilots, and
Plaintiffs filed a five-count amended complaint. Counts I and II allege that both American and Twin Hill are liable for battery and intentional infliction of emotional distress for exposing plaintiffs to Twin Hill's toxic uniforms. In Counts III and IV, plaintiffs assert that Twin Hill is strictly liable and negligent for manufacturing and supplying defective uniform. Finally, in Count V, plaintiffs seek to hold American and Twin Hill liable under a medical monitoring theory for exposing them to on-going and future risks of developing additional medical complications. The complaint also states that plaintiffs seek to represent a nationwide class of all current and former American employees who were exposed to Twin Hill's uniforms on or after September 1, 2016. On behalf of the class, plaintiffs seek an injunction barring Twin Hill from providing any new uniforms to American and requiring Twin Hill to recall the uniforms it previously supplied to American employees. They also seek to establish a medical monitoring program that includes: (1) a trust fund to pay for the costs of monitoring the health of employees who have been exposed to the uniforms; (2) notification to all affected employees that they may require monitoring to detect any long-term effects from their exposure; and (3) disclosure and analysis of the chemicals present in the uniforms for use by physicians who are to treat American's employees. Finally, the named plaintiffs seek damages for their individual injuries.
American and Twin Hill responded to the amended complaint by moving to dismiss under Rule 12(b)(6). American argues that plaintiffs' claims against it are barred by state workers' compensation statutes, which provide the exclusive remedy for on-the-job injuries. Twin Hill contends that plaintiffs fail to state a plausible claim for relief against it largely because there is no basis to conclude its uniforms are the source of the harm alleged. Twin Hill further asks the Court to strike the class allegations in the complaint pursuant to Rule 12(f) and Rule 23 on the basis that plaintiffs will be unable to establish that their claims merit class treatment. Before addressing those motions, the Court must clarify the appropriate pleading standard and identify the substantive law to be applied at this stage of the proceedings.
DISCUSSION
I. Pleading Requirements and Choice of Law
A motion under Rule 12(b)(6) challenges the sufficiency of a complaint to state a claim upon which relief may be granted. Hallinan v. Fraternal Order of Police Chi. Lodge No. 7 ,
Plaintiffs have divided their allegations into five counts corresponding to five legal theories. Although this is a common and often helpful approach to pleading, it obscures the difference between "claims," which set forth grievances and demands for relief, and "counts" which describe legal theories by which those facts purportedly give rise to liability and damages. See ACF 2006 Corp. v. Mark C. Ladendorf, Attorney at Law, P.C. ,
The distinction between claims and theories holds two implications for analyzing the adequacy of the complaint in this case. The first is that "[o]ne set of facts producing one injury creates one claim for relief, no matter how many laws the deeds violates." NAACP v. Am. Family Mut. Ins. Co. ,
There is an additional wrinkle concerning the substantive law to apply to this dispute. The claim relies on diversity jurisdiction, so the Court must apply Illinois' choice-of-law rules. Klaxon Co. v. Stentor Elec. Mfg. Co. ,
At this early stage of the litigation, there is little to go on to identify the state or states with the most significant relationship to the plaintiffs' alleged harms. The only exception is with regard to Plaintiffs Zurbriggen and Haley Johnson; both of these plaintiffs received and began wearing their Twin Hill uniforms in Illinois and suffered injury in that state. Am. Compl. ¶¶ 11, 13, 15. For the other nine plaintiffs, the complaint identifies only their domiciles; it does not indicate where they obtained their uniforms or where they experienced ill effects from the uniforms. Id. ¶¶ 14, 16-23. Based on this information, the defendants apply the law of each plaintiff's alleged domicile for purposes of their motions. AA Br. 4, ECF No. 36; TH Br. 6-7, ECF No. 44. The plaintiffs follow suit in their responses, with the caveat that discovery may reveal that the law of some other states may apply at a later stage, especially given the size and mobility of American's workforce. Pl. Opp'n to TH Br. 3 & n.2, ECF No. 44; Pl. Opp'n to AA Br. 2 n.1, ECF No. 45. Given the lack of dispute over choice of law at this stage, see Auto-Owners ,
II. American's Rule 12(b)(6) Motion to Dismiss
American's primary challenge to the complaint is that plaintiffs are barred from bringing suit against their employer under the Applicable States' workers' compensation regimes.
In many states, including the Applicable States, there is an exception to the exclusivity rule for intentional harm caused by the employer. The intentional harm exception lies at the heart of whether plaintiffs may maintain a suit against their employer. If it can be said that American intended to inflict physical (battery) or emotional (IIED) harm on the plaintiffs, then they can pursue relief against American outside of the workers' compensation system. Resolution of this dispute turns (depending on the jurisdiction) on whether the defendants specifically intended, were certain or were substantially certain that the new Twin Hill uniforms would injure the plaintiffs. Because the allegations of the complaint do not plausibly suggest that American was even substantially certain that any of the named plaintiffs would be injured by the new uniforms, it falls short of stating causes of action for the intentional torts of battery and intentional infliction of emotional distress under the law of any of the Applicable States.
Intent, as the term is commonly understood, refers to "a state of mind ... about the consequences of an act (or omission)." Prosser & Keaton, The Law of Torts 34 (5th ed. 1984). The Second Restatement defines intent to mean "that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it." Restatement (Second) of Torts § 8A (Am. Law. Inst. 1965). Put somewhat differently, intent embraces two concepts: purpose and knowledge. Restatement (Third) of Torts: Phys. & Emot. Harm § 1 cmt. a (Am. Law. Inst. 2010) (restyling definition to emphasize "dual definition" of intent). The purpose sense of intent is much easier to recognize; a quintessential example is an employer who punches an employee in the nose out of anger.
The distinction between purpose and knowledge matters in this case because jurisdictions are split on whether the intentional-tort
Several jurisdictions take a broader view and permit employees to bring suit under the knowledge prong as well. But the standard even among these states is not uniform. Several, including Indiana, require plaintiffs to establish actual knowledge; that is, knowledge that harm was "certain" to follow from the employer's conduct. Baker v. Westinghouse Elec. Corp. ,
The first question is easily answered in the negative. The complaint stops short of alleging that American acted with a purpose to harm anyone. To be sure, plaintiffs contend that American intended its employees to "come in contact with" the Twin
Turning to the second question, plaintiffs contend that the complaint gives rise to the inference that American was certain, or at least substantially certain, that the Twin Hill uniforms would harm employees. Pl. Opp'n to AA Br. 6-10, ECF No. 45. In support, they point to allegations showing American received adverse reaction reports from pilots during pre-launch testing and knew about Twin Hill's prior problems with uniforms manufactured for Alaska. In all events, plaintiffs continue, American knew the uniforms were hazardous shortly after they were introduced across the company. American received a flood of reports from across its workforce within days of the launch, and those complaints culminated in American's decision to roll back the new uniforms and repudiate its contract with Twin Hill. Even construing these allegations in a light most favorable to plaintiffs, the Court finds that they do not establish the intentional conduct necessary to avoid workers' compensation preemption.
The problem is not that plaintiffs fail to sufficiently allege that Twin Hill's uniforms can be harmful or even that American knew as much.
Plaintiffs estimate that 25-30% of American's workforce has suffered adverse health effects from working in or around Twin Hill uniforms. Am. Compl. ¶ 84 (referring to affected employees as "reactors"). There are two inferences that reasonably can be drawn from this allegation that bear on the issue of substantial certainty. The first is that each American employee faced a 25 to 30% risk of suffering ill effects after the uniforms were introduced. This inference does not take plaintiffs very far; even assuming American knew that its new uniforms posed such a risk to each employee, that risk exposure is too modest to plausibly suggest that American was substantially certain that the uniforms would injure any particular employee. "Mere risk, however great, is not enough to show intent under the traditional concept of substantial certainty." Dan B. Dobbs et al., Dobbs' Law of Torts § 506 (2d ed.); accord Sullivan v. Lake Compounce Theme Park ,
The second inference that can be drawn from the alleged number of reactors is that American was substantially certain that its new uniforms would cause harm to 25 to 30% of its workforce. This inference shifts the vantage point of certainty from what American knew about the risk of harm to its employees individually to what American knew about the risk of harm to its employees collectively. And it is from this collective perspective that plaintiffs seek to gage American's intent. Plaintiffs contend that American is liable to any employee who was ultimately harmed by the uniforms as long as the airline knew (or was substantially certain) that some portion of its workforce would be harmed. Pl Opp'n to AA Br. 6-7, ECF No. 45 (arguing that allegations support "inference that American has knowingly ... taking actions that are causing ... harm ... to thousands of its employees"); Pl. Supp. Mem. 2, ECF No. 89 (stating that American knew that it was "going to harm thousands of American employees with [the Twin Hill] uniforms"). The difficulty with the plaintiffs' collective view of substantial certainty, however, is that it blurs the line between negligence, recklessness, and knowledge.
Substantial certainty, like negligence and recklessness, is a way point along the spectrum of culpability. The difference between these thresholds is "a matter of degree," with the line being drawn "where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and comes in the mind of the actor a substantial certainty." State Farm Fire & Cas. Co. v. S.S. ,
But the degree of certainty is not the only factor that bears on the issue of substantial certainty; there also must be some predictability as to who the victim of the actor's misconduct will be. It is not enough for purposes of intentional-tort liability to show that injury is substantially certain to occur to someone. Dobbs, supra , § 29 ("It does not suffice to say that the defendant maintains a dangerous condition on his land that, over a period of years, is almost certain to cause injury to someone."). Rather, the test requires, at least in the context of occupational-hazard cases, that the defendant know to a substantial certainty that its conduct will result in harm to "a particular victim , or to someone within a small class of potential victims within a localized area." Restatement (Third) Torts: Phys. & Emot. Harm § 1 cmt. e (emphasis added);
This focus on the identity of the victim is essential to distinguishing accidental and intentional conduct. At a broad level of generality, it might be said that there are few "accidents" in the workplace; work creates risk and where humans are involved-that is to say, everywhere on the planet-with enough repetition, risks will be realized and injuries will occur. This is a function of the laws of probability; with enough repetition, all possible results are substantially certain to occur. See Kenneth W. Simons, Statistical Knowledge Deconstructed,
[Plaintiff] conflates probability with intent, suggesting that intent may be imputed where a high probability of injury exists because the employer knew that harm was substantially likely to occur sometime to some employee. Adopting this standard would unravel the structure of the [Workers' Compensation] Act. Almost every form of employment bears some risk of injury. Employers willing to expend the time and effort could sit down and calculate with some specificity the number of employees likely to be injured on the job in a year.... It does not make sense that a risk calculation, which is intended to expose the likelihood of an uncertain or unexpected event, could transform an unexpected or uncertain event (an accident) into an intentional injury. Such an approach would ignore the intent requirement altogether.
Plaintiffs object that it would be an "anomalous result if no intent can be found where American was substantially certain that thousands would be harmed, but would be found to act with intent if it knew that one or two employees would be harmed." Pl. Supp. Br. 6, ECF No. 89. But that's not quite right; the premise conflates statistical knowledge that harm will result to some members of a collective group with individualized knowledge that harm will result to an identifiable victim. Liability on an intentional-tort theory generally requires the latter: to recover, a plaintiff must demonstrate that the defendant intended (or at least was substantially certain) that the plaintiff-not someone else-would be harmed by the conduct at issue.
Recognizing this problem, the plaintiffs focus not on the question of whether American intended to harm a particular plaintiff but on the statistical risks to employees as a collective group; they suggest that given the scope of distribution-over 1.4 million clothing articles issued to over 65,000 employees-American was aware that the uniforms were bound to harm thousands of its employees based on the issues that had cropped up during testing and among Alaskan employees. They contend that even if the risk of harm to any one of them was low, American knew that harm to some portion of its workforce was statistically certain given that the risk was run tens of thousands of times.
Two of the other Applicable States also appear to require employers to know that their actions will result in the specific injury at issue. In Reed Tool , the Texas Supreme Court stated that an employer's intentional failure to provide a safe workplace will not amount to an intentional tort "except when the employer believes his conduct is substantially certain to cause the injury."
In the second case, Moore v. Alcatel-Lucent USA, Inc. , a federal district court applying North Carolina law held that a cable installer failed to sufficiently show intentional harm from asbestos exposure and was thus statutorily barred from suing his employer. No. 16 CV 00157-MR-DLH,
Plaintiffs contend that other courts have reached the opposite conclusion; namely, that a defendant has the requisite intent to commit an intentional tort so long as it was substantially certainty that someone-though not the particular victim-would be harmed by its misconduct. Pl. Supp. Br. 2, 6, 7. Implicitly acknowledging that courts in the Applicable States have not so held, they rely heavily on two cases- Field v. Philadelphia Electric Co. ,
Although Arias is more factually analogous, it rests on a shaky foundation. The district court in that case denied a motion to dismiss a battery claim brought by numerous Ecuadoran citizens against a company that had released fumigants by air over large swaths of the country in an effort to eradicate poppy plantations.
In all events, the weight of authority outside of the Applicable States appears to acknowledge the requirement that substantial certainty must extend to the identity of the victim as well as the potential consequence of the conduct at issue. As discussed above, at least three other state supreme courts have embraced the principle underlying comment e, even if they have not cited the Third Restatement. See Walston ,
Plaintiffs raise one other argument about the viability of the identification requirement reflected in comment e. They suggest that, given the examples set forth in the Third Restatement, the comment applies only in situations where the harm is a necessary by-product of the employer's business. Pl. Supp. Br. 3, ECF No. 89. In this case, plaintiffs continue, the rule does not apply because "providing dangerous uniforms is not an unavoidable consequence of the normal operation of American's business."
Nor is there a basis to conclude that any of the named plaintiffs were part of a small class of employees who were certain to develop health problems. Plaintiffs contend that, even under comment e, it is enough that American knew that some portion of its over 65,000 employees would be harmed. In support of this argument, they urge the Court not to read the Restatement literally; rather, they insist, the rule requires only that the defendant be substantially certain that some "defined group or class of people, as opposed to some unknown group in some unknown area, would be harmed." Pl. Supp. Mem. 4, ECF No. 89. They add as well that requiring a narrower class of potential victims is unnecessary here given that are "no temporal attenuations" that make the connection between American's conduct and the harm alleged "more complex," given that some employees experienced adverse reactions immediately after the roll-out. Id. at 7. This argument lacks force.
If the Court were to adopt plaintiff's construction, then the identity requirement would be satisfied in every occupational hazard case because an employer's workforce would always constitute a "defined" group. To be sure, the qualifications referenced in comment e-"a small class of potential victims within a localized area"-typically raise a question of fact regarding whether a risk is sufficiently concentrated and imminent to support a finding of substantial certainty. But, the allegations of harm here are so far removed from being "small" or "localized" that the complaint does not plausibly invoke this standard. It is one thing to say that the known risk posed by a specific machine to the small number of identifiable employees who use it could satisfy substantial certainty standard, see, e.g. , Suarez v. Dickmont Plastics Corp. ,
Nor does the fact that some employees experienced ill effects shortly after the roll out solve this problem. Although the timing certainly supports plaintiffs' contention that the uniforms are the cause of the harm at issue, it does not shed light (at least in this case) on the identity of any potential victims. At bottom, that American was aware of the risk that some portion of its workforce would develop health problems does not support liability for an intentional tort sufficient to overcome exclusivity.
Finally, and contrary to plaintiff's contention, the outcome of the substantial certainty analysis does not change if the focus is shifted to American's refusal to pull all Twin Hill uniforms from circulation after receiving a torrent of complaints from employees. Plaintiffs acknowledge that American took some measures to address the adverse reaction reports. American initially permitted employees who reported experiencing health problems to order new uniforms or revert to their old ones. Am. Compl. ¶ 63. And when that did not eliminate the problem, American reversed course on the uniform rollout in November 2016 and stopped requiring (at least affected) employees to wear Twin Hill uniforms. Id. ¶¶ 79-80. Given these allegations, what plaintiffs are really contending is that American is liable for battery and intentional infliction of emotional distress because it was certain that employees were being harmed from working near others who still wore Twin Hill uniforms. Put differently, plaintiffs allege that in light of the thousands of adverse reaction reports that were filed after November 2016, American must have known that its employees were being harmed through close proximity, not just direct contact, with the Twin Hill uniforms.
This contention fails for much the same reason the uniform rollout allegations are insufficient. The complaint provides no basis to find that American knew that any of the named plaintiffs would suffer or continue to suffer harm after being permitted to wear alternative uniforms. That plaintiffs are among the portion of American's workforce who react to Twin Hill uniforms through close proximity does not mean that American knew they would be among that population. To the contrary, the complaint at most alleges that American knowingly permitted a hazardous condition to exist throughout its workforce and willfully failed to furnish a safe place to work. And absent some indication that the employer was substantially certain that the plaintiffs would be injured by such misconduct, neither basis is sufficient to overcome workers' compensation exclusivity. See, e.g. , Reed Tool ,
Two other issues regarding plaintiffs' claims against American must also be addressed before closing. First, plaintiffs
The second issue concerns plaintiffs' medical monitoring theory. Although plaintiffs argue (in response to Twin Hill's motion to dismiss) that they have pled sufficient facts to proceed on this theory, they fail to address how it squares with workers' compensation exclusivity. It is not readily apparent to this Court how this theory (whether labeled as a cause of action or a form of relief) would overcome exclusivity, especially considering that the crux of the relief plaintiffs seek is to establish a medical monitoring trust fund; that is, a pool of damages meant to compensate American employees for the risk of future harm imposed on them by their employer. There may be reasons to conclude otherwise, but the plaintiffs offer no explanation as to how they can maintain a medical monitoring claim consistent with the exclusivity rule in the absence of conduct that qualifies as intentional under that rule. Accordingly, the Court finds that this theory is barred as well. Because that the plaintiffs' claims against American are precluded by the applicable exclusivity statutes, American's motion to dismiss is granted.
III. Twin Hill's Rule 12(b)(6) Motion to Dismiss
Having dismissed American, the Court now turns to Twin Hill's motion to dismiss. Twin Hill argues that plaintiffs have not sufficiently alleged facts showing an entitlement to relief under any of the five legal theories they assert: battery, intentional infliction of emotional distress, negligence, strict liability, or medical monitoring. Because the Court concludes that plaintiffs state a claim under a product liability theory, Twin Hill's Rule 12(b)(6) motion to dismiss the complaint must be denied.
Although there is "no monolithic products liability law in the United States," 1 M. Stuart Madden, Products Liability § 2.01 (2018), there are some shared principles that characterize product liability theory across jurisdictions. In many states, including the Applicable States, plaintiffs must show at least that the product at issue has an unreasonably dangerous defect; that the defect existed at the time the product left the manufacturer's control; and that the defect caused the injury for which the plaintiffs seek redress.
The Applicable States apply various approaches to design defects. For starters, the states are divided on whether they classify design defects as a matter of strict liability or negligence. Connecticut, Illinois, Nevada, and Texas fall on the strict liability side of the divide. See Izzarelli ,
The Applicable States also subscribe to different methods of proof for establishing design defects. Nevada utilizes the consumer expectation test, which generally asks whether the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Trejo ,
Connecticut and Illinois apply some combination of the consumer expectation and risk-utility tests. Connecticut typically employs a risk-utility test but applies a consumer exception test in a narrow set of cases where the product fails to meet a consumer's minimum safety expectations. Bagley v. Adel Wiggins Grp. ,
Finally, North Carolina and Indiana have codified their standards for determining when a manufacturer has breached its duty of care in designing a product. North Carolina requires a plaintiff to show "that at the time of its manufacture[,] the manufacturer acted unreasonably in designing or formulating the product" and "that this conduct was a proximate cause of the harm from which damages are sought." N.C. Gen. Stat. Ann. § 99B-6 (West 2018). Additionally, a plaintiff must show one of two alternatives:
(1) At the time the product left the control of the manufacturer, the manufacturer unreasonably failed to adopt a safer, practical, feasible, and otherwise reasonable alternative design or formulation that could then have been reasonably adopted and that would have prevented or substantially reduced the risk of harm without substantially impairing the usefulness, practicality, or desirability of the product.
(2) At the time the product left the control of the manufacturer, the design or formulation of the product was so unreasonable that a reasonable person, aware of the relevant facts, would not use or consume a product of this design.
Id. ; see also DeWitt ,
Despite the variance in state law, the Court concludes that each of the plaintiffs has pleaded sufficient facts to maintain
These allegations are sufficient to infer a design defect under a consumer expectation test and the various risk-utility tests. An ordinary American employee would not expect company-issued uniforms to give rise to any health problems-let alone skin, respiratory, and auto-immune issues-through normal wear. And although plaintiffs do not posit an alternative design in the complaint, one can be inferred from their allegations: a uniform free of the hazardous chemicals identified in the complaint. Whether it would actually have been feasible for Twin Hill to manufacture the uniforms in a way that minimized or eliminated these substances is a question of fact to be developed through discovery, but it is plausible to infer at this stage that it was feasible to design uniforms that did not use such chemicals; companies outfit their employees in uniforms every day that do not create the sort of health issues alleged in this case.
The allegations also give rise to the inference that Twin Hill failed to exercise reasonable care in designing the uniforms. In particular, the allegations suggest Twin Hill knew, or at least should have known, that its uniforms would cause numerous American employees to develop health problems. Twin Hill was aware that "many" American pilots reported experiencing "rashes, flu-like symptoms, headaches, vomiting, and respiratory problems" during testing and that one of the pilot unions requested that the uniforms not be used. Am. Compl. ¶ 28. And Twin Hill also knew that it was embroiled in litigation with Alaska employees who had reported suffering similar adverse reactions. Id. ¶ 28.
At bottom, the complaint presents a plausible, factual-based story that Twin Hill uniforms are unreasonably dangerous in their design and so meets the pleading standards set forth in Rule 8. See Bausch v. Stryker Corp. ,
Twin Hill contends that even if the uniforms are somehow defective, plaintiffs fail to establish a plausible causal connection between the chemicals identified in the uniforms and any of the adverse reactions referenced by the plaintiffs. According to Twin Hill, plaintiffs "acknowledge" that no single chemical is present in the uniforms "at a high enough level to cause health problems," and "all but admit[ ] that testing likely cannot determine whether or not a synergistic effect from a combination of chemicals caused health effects." TH Br. 11-12 (citing Am. Compl. ¶¶ 35-36). Neither contention is accurate. In paragraph 35, plaintiffs merely acknowledge that its defendants' position that testing fails to show any single harmful chemical in the uniforms. Indeed, as discussed above, plaintiffs allege that testing on some of the uniform pieces shows the existence of chemicals that may be harmful on their own. Twin Hill also misconstrues paragraph 36, which states that "[n]o amount of testing can serve to negate the real-world events that are taking place"-i.e. , that thousands of American employees developed similar symptoms after the uniforms were introduced into the workforce. This is not, as Twin Hill suggests, an admission that no amount of testing can confirm whether a combination of chemicals is producing harmful effects.
Even if testing to date has not identified an objectively high level of any single chemical or corroborated plaintiffs' synergistic theory, the complaint still plausibly alleges that Twin Hill's uniforms are the source of the harm at issue. Plaintiffs contend that a large number of American employees began experiencing similar health problems shortly after the Twin Hill uniforms were introduced. Id. ¶¶ 4, 55. Employees began reporting health problems "within weeks if not days" of the rollout. Id. ¶ 27. The number of reports allegedly swelled over the course of the next several months, with over 5,000 American employees complaining of uniform-related health problems within a year of the launch. Id. ¶¶ 4, 55, 57. Moreover, plaintiffs allege that the introduction of the Twin Hill uniforms was the only "common event that happened to the entire workforce" during that timeframe. Id. ¶ 30. They add as well that the adverse reactions typically dissipate when employees are not exposed to the uniforms yet reappear when the employees are exposed to the uniforms again. Id. ¶¶ 37-39. These factual allegations, taken as true and in the light most favorable to plaintiffs, are sufficient to establish above a speculative level that the uniforms are the source of harm.
Twin Hill's final argument is that plaintiffs "cloak their allegations in generalities." TH Reply 8, ECF No. 51. Twin Hill essentially complains that plaintiffs do not allege what "specific uniforms garments they wore or were exposed to" and what specific "adverse health effects" they experienced, let alone how those effects "could be associated with the uniforms garments Plaintiffs wore."
Nor is the Court persuaded that plaintiffs must provide more detail about the uniform garments they wore or to which they were exposed. Twin Hill suggests that there is an insufficient link between the uniform garments that plaintiffs tested and the ones that allegedly caused plaintiffs to suffer adverse effects-especially given that Twin Hill has supplied "dozens of different garments choices" to American employees. TH Br. 8, ECF No. 51. There are two problems with this argument. First, it draws on facts that are beyond the four corners of the complaint. Second, the Court may infer from the complaint that plaintiffs' Twin Hill uniforms contain some of the same chemicals as the uniforms that were tested. Plaintiffs allege that they have experienced symptoms that are consistent with those associated with exposure to the chemicals identified through testing. See Am. Compl. ¶¶ 31, 49, 70-74. The facts may prove otherwise and the plaintiffs will need to establish causation, but they at least will have the benefit of discovery to meet this burden. Therefore, because plaintiffs have stated a claim against Twin Hill under at least a product liability theory, Twin Hill's motion to dismiss the complaint is denied.
Finally, Twin Hill moves to strike plaintiffs' class allegations on the grounds that they have not, and cannot at a later stage, meet the requirements for class treatment. A number of courts in this district have recognized that striking class allegations at the pleading stage is permissible "when it is apparent from the complaint that class certification is inappropriate." Rysewyk ,
Twin Hill argues that the class allegations here should be stricken for two reasons, but neither persuades. The first is that variations in state law and individual class member's circumstances will make certification impossible. TH Br. 21, ECF No. 43. In particular, Twin Hill suggests that the class may require applying the law of all fifty states and points to the lack of uniformity in product liability and medical monitoring law across jurisdictions. Moreover, Twin Hill continues, the divergent legal standards will be complicated by individualized factual questions, such as "how long each individual wore the uniforms, the alleged chemical(s) present in each uniform, and each individual's health history." Id. at 23. Plaintiffs respond that this argument is premature at best. Pl. Opp'n to TH Br. 17-18, ECF No. 44. Although they concede that the class' claim "conceivably might involve the laws of [fifty] different states at some point," they note that it is not clear whether that will be the case. Id. at 17. Plaintiffs add that the parties will need discovery on the domicile of each class member, as well as on where each class member was injured, to understand the implications of Illinois' choice-of-law rules. Id. at 18. At any rate, plaintiffs argue, even if state law varies significantly, the Court may certify a class based on common issues of fact, of which there are several in this case. Id. at 20.
Plaintiffs have the better of this argument. The Court is hard pressed to declare that a class action is unworkable based on variations in state law when it is far from
Two other considerations bolster the Court's conclusion. First, material differences in substantive state law could be addressed through subclasses. See Butler v. Sears, Roebuck & Co. ,
Twin Hill's second ground for striking the class allegations is similarly unavailing. Twin Hill contends that plaintiffs seek prospective injunctive relief on behalf of the class yet cannot show that any members of the class are suffering from a continuing harm in light of American's decision to permit employees to wear alternative uniforms. TH Br. 23, ECF No. 43. But Twin Hill ignores allegations in the complaint that plaintiffs and putative class members continue to suffer ill effects by working
* * *
For the above reasons, American's Rule 12(b)(6) motion to dismiss is granted. The dismissal, however, is without prejudice; plaintiffs have leave to re-plead their claims to address the issues set forth in this opinion, if they are able. Any amended complaint is due no later than October 4, 2018. Twin Hill's Rule 12(b)(6) motion to dismiss and Rule 12(f) motion to strike are denied.
Notes
As it must on a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the amended complaint and draws all reasonable inferences in plaintiffs' favor. Deb v. Sirva, Inc. ,
It is not clear whether American permitted all employees or only those who had been adversely affected to take advantage of these options. Compare Am. Compl. ¶ 33 with ¶ 79. In either case, the complaint makes clear that some American employees continued to wear Twin Hill uniforms (and were permitted to do so) after the November 2016 announcement. Id. ¶ 84.
The amended complaint alleges that Alaska flight attendants also continued to experience adverse reactions after Alaska transitioned to a different uniform supplier in 2014. Id. ¶ 29.
Specifically, the Court applies Connecticut law to the Catans; Illinois law to Zurbriggen and Haley Johnson; Indiana law to Chester; Iowa law to Terry; North Carolina law to Kimberly Johnson and Preston; Nevada law to Bell; and Texas law to Urquhart and Crumrine.
Although American's motion essentially challenges whether the courts of the Applicable States have subject matter jurisdiction over the claim against American (given that this Court is sitting in diversity), the Seventh Circuit has clarified that the motion is properly characterized as a Rule 12(b)(6) motion, rather than a Rule 12(b)(1) motion. Tacket v. General Motors Corp., Delco Remy Div. ,
Plaintiffs assert that they really have no workers' compensation remedies because "American and its worker's compensation insurer have turned down every injured on-duty claim ... on the basis that any claimed injuries due to uniform reactions are not work related." Pl. Opp'n to AA Br. 6, ECF No. 45 (emphasis original). The plaintiffs' success (or lack thereof) in litigating their workers' compensation claims, however, has nothing to do with an analysis of the scope of the statutory preemption of state tort law by a state's workers' compensation program.
The Illinois Supreme Court has not weighed in on the definition of intent for purposes of exclusivity. However, given that Illinois appellate courts consistently have held that the purpose sense of intent is required to bypass IWCA exclusivity, see, e.g. , Dale v. S. Cent. Ill. Mass Transit Dist. ,
Iowa recognizes an intentional-tort exception, see Brcka v. St. Paul Travelers Companies, Inc. ,
The plaintiffs' reliance on this Court's opinion in Volling v. Antioch Rescue Squad ,
For ease of reference, the Court refers to this provision as "comment e" going forward.
Cases of "transferred intent"-where conduct intentionally targeting one victim injures someone else-might be an exception to this rule, but they have no relevance to the facts alleged here. As noted, the plaintiffs do not allege that American intended or knew that any individual employee would be adversely affected by the Twin Hill uniforms. See Pl. Supp. Br. 9, ECF No. 89. There is no individualized intent to "transfer."
Dipping further into the reductio ad absurdum well, the plaintiffs contend that requiring identifiable victims would immunize a shooter who fires into a crowd of thousands of people. Pl. Supp. Br. 4, ECF No. 89. They posit that even if the shooter is substantially certain that someone would be hit by the bullet, he would not be liable under the Third Restatement's approach because he is not certain who or how many would be struck.
Distinguishing between statistical and individual may seem harsh; it suggests that victims who are considered mere statistics (though injured nonetheless) are valued less than those who are identified in advance. It is important to bear in mind, however, that "it is not the gravity or depravity of the employer's conduct but rather the narrow issue of intentional versus accidental quality of the injury" that animates the issue of workers' compensation exclusivity. Reed Tool ,
The Indiana Supreme Court implicitly has held in another context that a plaintiff must demonstrate the defendant's intent to harm a particular victim to be liable for battery. See Mullins v. Parkview Hosp., Inc. ,
Many of the other industrial hazard cases that plaintiffs cite are distinguishable for the same reason; i.e. , the alleged harm was concreted on a particular victim or a localized area where a small group of potential victims worked. See Advanced Countertop Design, Inc. v. Second Judicial Dist. Court of State ex rel. Cnty. of Washoe ,
Plaintiffs argue that even if comment e is applicable, it has no bearing at the motion to dismiss stage given that knowledge is inherently a factual issue. The Court disagrees. That many of the cases cited above were decided on summary judgment or post trial does not detract from the fundamental point underlying their holdings: to avoid the exclusivity provisions of state workers' compensation laws, plaintiffs must show-and thus plausibly allege at the pleading stage-that their employer knew with actual or substantial certainty that they would be harmed by the conduct at issue. Moreover, as at least one other district court in this circuit has recognized, a complaint "must do more than merely allege intentional injury as an exception to the general exclusiveness rule" to survive dismissal; "it must allege facts that add up to a deliberate intent to bring about injury." Hurd v. Monsanto Co. ,
Twin Hill argues that certain plaintiffs' product liability "claims" should be dismissed because those plaintiffs do not assert a cause of action under their home states' products liability statutes. See, e.g. , TH Br. 13, ECF No. 43 ("Because the CPLA provides the Catan Plaintiffs with an exclusive remedy, the Court should dismiss their strict liability claim to the extent it is brought pursuant to common law."); id. at 17 ("Inasmuch as the IPLA subsumes any common law negligence, Plaintiff Chester's negligence claim must be dismissed."). The Court disagrees. Because plaintiffs are not required to identify legal theories in their complaint, they need not identify which statutory provisions support their claims.
That is not to say that a design defect is the only theory plaintiffs may pursue in discovery. The Court simply notes that a design defect theory is the most readily apparent based on the allegations in the complaint.
Some courts have questioned whether there is truly a distinction between strict liability and negligence in design defect cases. See, e.g. , Wright ,
Twin Hill does not dispute in its motion that it designed the uniforms at issue or that the uniforms were altered in any way after they left Twin Hill's control. Thus, the Court limits its analysis to the defect and causation requirements.
Twin Hill asks the Court to take judicial notice of two documents in support of its causation argument. The first is a decision by a California superior court in a suit by Alaska employees against Twin Hill holding that Alaska employees failed to show above a speculative level that the chemicals found in their uniforms were causing the symptoms they alleged. Ex. A to TH Br., ECF No. 43-1. The second document is a report issued by the National Institute of Occupational Safety and Health ("NOISH"), which concludes that its testing of American employees' uniforms did not "identify a single chemical, an individual uniform component, or combinations that were responsible for the constellation of symptoms" reported by American employees. Ex. A to TH Reply, ECF No. 51-1. Although the Court may take judicial notice of documents in the public record and reports of administrative bodies, Wigod v. Wells Fargo Bank, N.A. ,
Because the Court finds that plaintiffs have pled facts supporting at least one of their theories of relief, it need not evaluate the other theories asserted against Twin Hill. Seesupra at 882. Denial of the motion to dismiss, however, does not affirm the viability of any of the legal theories advanced by the plaintiffs against Twin Hill other than the product liability theory. Indeed, the flaws in the intentional tort theories aimed at American may well apply in the context of the plaintiffs' claim against Twin Hill (though the fact that workers' compensation exclusivity rules do not come into play as to Twin Hill might also bear on the analysis). It remains for the plaintiffs to identify, and Twin Hill to test, the plaintiffs' legal theories in discovery and, if warranted, for Twin Hill to seek summary judgment as to any theory it believes fails as a matter of law.
Because plaintiffs seek class certification only under Rule 23(b)(2) they will not be required to establish that common questions of fact predominate over individual issues.