Opinion
N22C-04-006 SKR N22C-04-007 SKR N22C-04-008 SKR N22C-04-098 SKR N22C-05-071 SKR N22C-09-361 SKR N22C-10-626 SKR N22C-11-019 SKR N22C-12-199 SKR N23C-02-046 SKR N23C-02-158 SKR N23C-03-139 SKR N23C-04-108 SKR N23C-04-207 SKR N23C-04-255 SKR N23C-05-067 SKR N23C-05-243 SKR N23C-06-010 SKR N23C-06-011 SKR N23C-06-224 SKR N23C-08-103 SKR N23C-08-262 SKR N23C-09-053 SKR N24C-01-091 SKR N24C-01-094 SKR N24C-02-088 SKR N24C-03-013 SKR N24C-03-017 SKR N24C-04-034 SKR
05-31-2024
SARAH CRAWFORD, Plaintiff, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. VIVIAN SHELBURNE, Plaintiff, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. ALBERT RAY MAGEE, SR., Plaintiff, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. ALLAN ANDERSON, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. THOMAS WILLIS, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. BRENDA WOOLDRIDGE, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. DAVID BARRIES, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. ARNOLD J. PHILLIPS, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. CHRIS DULA, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. ROBERT THOMPSON, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. KATHY DANIEL, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. MICHAEL MASSMAN, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. ESTATE OF JOSEPH HAMRICK, Plaintiff, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. JUNE SCHNEIDER-AISHMAN, Plaintiff, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. CHAD TRENDLE, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. EDWARD LORING, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. MATT SCHULTE, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. ROBERT POLLOCK., Plaintiff, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. STEVEN M. HALLIWILL, Plaintiff, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. MARY JANE TRIBBLE, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. MARTHA HERRON, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. RUBEN BLANSETT, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. DAVID GORDON, Plaintiff, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. DEBRA WATSON, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. EDDIE L. HENDRICKS, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. MICHAEL ROBERT CLARK, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. RICHARD ALLEN BENSKIN, Plaintiff, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. VERONICA LECOMPTE DUPRE, et al., Plaintiffs, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants. LORETTA MARVIN, Plaintiff, v. SYNGENTA CROP PROTECTION, LLC, et al., Defendants.
Raeann Warner, Esquire, COLLINS PRICE & WARNER, Wilmington, Delaware, Attorney for Plaintiffs. Alexandra M. Cumings, Esquire, John P. DiTomo, Esquire, and Emily C. Friedman, Esquire, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware, and Ragan Naresh, Esquire, and Patrick L. Butler, Esquire, KIRKLAND & ELLIS LLP, Washington, D.C., Attorneys for Defendant Syngenta Crop Protection, LLC. Kelly E. Farnan, Esquire, and Christine D. Haynes, Esquire, RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware, and Leon F. DeJulius, Jr., Sharyl A. Reisman, and Debra R. Belott, JONES DAY, New York, New York, and Washington, D.C., Attorneys for Defendant Chevron U.S.A., Inc.
Upon Consideration of Defendants' Motion to Dismiss: GRANTED in part and DENIED in part.
Raeann Warner, Esquire, COLLINS PRICE & WARNER, Wilmington, Delaware, Attorney for Plaintiffs.
Alexandra M. Cumings, Esquire, John P. DiTomo, Esquire, and Emily C. Friedman, Esquire, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware, and Ragan Naresh, Esquire, and Patrick L. Butler, Esquire, KIRKLAND & ELLIS LLP, Washington, D.C., Attorneys for Defendant Syngenta Crop Protection, LLC.
Kelly E. Farnan, Esquire, and Christine D. Haynes, Esquire, RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware, and Leon F. DeJulius, Jr., Sharyl A. Reisman, and Debra R. Belott, JONES DAY, New York, New York, and Washington, D.C., Attorneys for Defendant Chevron U.S.A., Inc.
MEMORANDUM OPINION AND ORDER
SHELDON K. RENNIE, JUDGE
INTRODUCTION
The defendants in this mass tort litigation have filed a motion to dismiss the plaintiffs' complaints on the grounds that the plaintiffs have failed to satisfy various substantive and procedural requirements to state a valid products liability claim. In the twenty-four underlying toxic tort actions, over 150 plaintiffs from across the country allege that long-term exposure to the chemical herbicide paraquat-a weed killer associated with the defendants-caused them to contract Parkinson's disease.
These facts are largely drawn from Plaintiffs' various complaints.
Plaintiffs are individuals who reside in various states, including Alabama, Arkansas, California, Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Washington, and Wisconsin.
Each Plaintiff states that he or she, or a represented relative, was personally exposed to paraquat. Specifically, Plaintiffs state that they all encountered paraquat by skin contact, inhalation, while it was being mixed or loaded, or through spray drift, the unintentional movement of the chemical by wind. But the dates and durations of Plaintiffs' various exposures to paraquat vary widely. For instance, Plaintiff Scobey was exposed to paraquat from 2002 to 2004. Meanwhile, Plaintiff Fredericks's now-deceased husband was exposed to paraquat from 1965 to 2016.
Plaintiffs state that, subsequent to the exposure, they were all diagnosed with Parkinson's disease, a neurodegenerative brain condition. Plaintiffs were not told by medical professionals that exposure to paraquat causes Parkinson's disease. Plaintiffs allege that the condition caused them to incur medical expenses for treatment costs and lose wages and earning capacity.
Defendants Syngenta Crop Protection, LLC ("Syngenta"), a Delaware limited liability company based in Delaware, and Chevron U.S.A., Inc. ("Chevron"), a Pennsylvania corporation based in California, were the exclusive manufacturers and distributors of products containing paraquat in the United States until the end of 1986. Defendants John Doe 1-50 (the "John Does") stand in the place of presently unidentified entities who designed, developed, manufactured, or sold paraquat.
Since 1987, Syngenta has been the exclusive manufacturer, distributor, or licensor of paraquat in the United States. Until at least 1993, Chevron made and sold chemicals that, when used with paraquat, increase its propensity to cross the human blood-brain barrier and cause injury. Defendants deny any causal link between exposure to paraquat and Parkinson's disease.
PROCEDURAL HISTORY
This is a multi-case toxic tort litigation in which numerous Plaintiffs have all filed suit against Defendants Syngenta, Chevron, and the John Does, asserting claims of strict products liability, negligence, breach of the implied warranty of merchantability, and wrongful death. On April 1, 2022, Plaintiff Sarah Crawford filed the first complaint in the multi-case.
T.I. 67445591.
On October 6, 2023, Defendants filed a motion to dismiss certain of Plaintiffs' claims (the "Motion"). On November 6, 2023, Plaintiffs filed a brief in opposition to the Motion. On November 21, 2023, Defendants filed a reply brief in support of the Motion. On January 5, 2024, the Court heard argument on the Motion.
T.I. 71034440.
T.I. 71340296.
T.I. 71461165.
On March 7, 2024, the Court granted the request from some of Plaintiffs to voluntarily dismiss their implied warranty claims and their claims against the John Does. On April 3, 2024, Plaintiff Loretta Marvin filed the most recent complaint in the multi-case.
T.I. 72323520. The following plaintiffs voluntarily dismissed their implied warranty claims: (1) N22C-04-098 SKR, Badeaux, Schumate, Wales, Norder, Glaude, and Johnston; (2) N22C-04-097, Rambone, Brown, Holden, Herbert, and Allen; (3) N22C-04-008 SKR, Magee; (4) N22C-05-071 SKR, Johnson; (5) N22C-10-626 SKR, Barries and Heck; (6) N22C-11-019 SKR, Staley and Magee; (7) N22C-12-199 SKR, Fruge; (8) N23C-02-046 SKR, Thompson, Lewis, and Heil; (9) N23C-02-158 SKR, Richards; (10) N23C-03-139 SKR, Myers, Phelps, and Panuzzi; (11) N23C-05-067 SKR, Riley, Ayodele, and Curtis; (12) N23C-05-243 SKR, Bell; (13) N23C-06-224 SKR, McElroy; (14) N23C-08-103 SKR, Dycus; and (15) N23C-08-262 SKR, Blansett and Busby.
Id. The claims against the John Does were dismissed in the following actions: (1) N22C-04-098 SKR; (2) N22C-04-097 SKR; (3) N22C-04-006 SKR; (4) N22C-04-008 SKR; (5) N22C-04-007 SKR; (6) N22C-05-071 SKR; (7) N22C-10-626 SKR; (8) N22C-11-019 SKR; and (9) N22C-09-361 SKR.
T.I. 72672345.
STANDARD OF REVIEW
Upon a motion to dismiss made pursuant to Superior Court Civil Rule 12(b)(6), the Court accepts all well-pleaded allegations in the complaint as true.Even vague allegations are considered well-pleaded if they give the opposing party notice of the claim. The Court draws all reasonable inferences in favor of the nonmoving party. However, the Court will not accept conclusory allegations unsupported by specific facts" or "draw unreasonable inferences in favor of the nonmoving party." The claim is dismissed only if the plaintiff "would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof."
Sees v. Mackenzie, 2023 WL 5202675, at *2 (Del. Super. Aug. 14, 2023).
Id.
Id. (quoting Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011)).
Id. (quoting Windsor I, LLC v. CW Capital Asset Mgmt. LLC, 238 A.3d 863, 871 (Del. 2020)).
LEGAL ANALYSIS
Defendants' Motion, and the subsequent papers, implicate eleven issues of law: (1) choice of law; (2) joinder; (3) statutes of limitations; (4) statutes of repose; (5) preclusion of claims by state products liability acts; (6) strict liability; (7) vertical privity requirements for implied warranty claims; (8) notice requirements for implied warranty claims; (9) heightened pleading requirements for negligence; (10) punitive damages; and (11) fictitious name practice. The Court addresses the issues in that order.
A. Choice of Law
In these cases, Plaintiffs assert personal injuries that arose in separate states and legal claims that implicate the laws of these states. Accordingly, before reaching the contours of the arguments raised by the parties, the Court must determine which state's laws govern the analysis of each issue.
"Delaware courts regularly interpret and apply the laws of other states and have consistently held that the 'need to apply another state's law will not be a substantial deterrent to conducting litigation in this state.'" In re Asbestos Litig., 929 A.2d 373, 386 (Del. Super. 2006).
The forum court generally applies "its own conflict of law rules to determine the governing law in a case." Delaware courts apply a two-step test for each issue to determine the applicable law. First, the Court "determines if there is an actual conflict" between the states' laws. No actual conflict exists if applying the different laws yields the same result. Second, if the states' laws actually conflict, the Court applies the "most significant relationship test" to determine which state's law governs. The law of the state that "has the most significant relationship to the occurrence and the parties" applies. The most significant relationship is determined by factors from the Second Restatement of Conflict of Laws:
Tyson Foods, Inc. v. Allstate Ins. Co., 2011 WL 3926195, at *5 (Del. Super. Aug. 31, 2011); see Restatement (Second) of Conflict of Laws § 6(1) (1971).
Caballero v. Ford Motor Co., 2014 WL 2900959, at *2 (Del. Super. June 24, 2014) ("Choice-of-law determinations must be made as to each issue when presented, not to the case as a whole.") (quoting Laugelle v. Bell Helicopter Textron, Inc., 2013 WL 5460164, at *3 (Del. Super. Oct. 1, 2013)). That said, when presented with a complex case that involves large numbers of parties with contacts in various states, this Court has imposed a single, global choice of law. Liggett Grp. Inc. v. Affiliated FM Ins. Co., 788 A.2d 134, 137, 145 (Del. Super. 2001). The volume of discovery and research in such a case warrant a global choice of law, based on "[t]he interests of economy, ease of application, and uniformity of result." Id.
Caballero, 2014 WL 2900959, at *2.
Id.
Tumlinson v. Advanced Micro Devices, Inc., 2010 WL 8250792, at *1-2 (Del. Super. July 23, 2010).
(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.
Id.; Restatement (Second) of Conflict of Laws § 6(2) (1971). These factors "are evaluated according to their relative importance with respect to the particular issue." Laugelle v. Bell Helicopter Textron, Inc., 2013 WL 5460164, at *3 (Del. Super. Oct. 1, 2013). The choice of law rules are designed "to further harmonious relations between states and to facilitate commercial intercourse between them." Bell Helicopter Textron, Inc. v. Arteaga, 113 A.3d 1045, 1057 (Del. 2015).
Further, the Restatement describes four additional factors for this determination:
(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.
Restatement (Second) of Conflicts of Laws § 145(2) (1971).
When the alleged injury occurred in a foreign state, and the defendant's only connection to the State of Delaware is its incorporation in this State, the foreign state has the most significant relationship for issues of liability and damages.Nonetheless, "regardless of which state's substantive law is used, procedural matters are generally controlled by the law of the forum state."
Tumlinson, 2010 WL 8250792, at *2 (quoting Clinton v. Enter. Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009)) ("For personal injury actions, the law of the state where the injury occurred is presumed to control unless another state has a more significant relationship."); McBride v. WhitingTurner Contracting Co., 1993 WL 489487, at *2 (Del. Super. Oct. 21, 1993) (foreign state "has a great interest in the personal injuries which occur within its borders").
Tumlinson, 2010 WL 8250792, at *1; Arteaga, 113 A.3d at 1058 ("According to the Restatement, when 'the state of the forum has no interest in the case apart from the fact that it is the place of the trial . . . the only relevant policies of the state of the forum will be embodied in its rules relating to trial administration.'").
In this case, the oft-conflicting substantive laws of at least thirty-five states are implicated in Plaintiffs' complaints, and the Restatement factors for the most significant relationship are about evenly balanced for most of the issues implicated by the Motion. Thus, in this analysis, the Court finds particularly well-founded Delaware courts' tendency in personal injury actions to apply the substantive laws of the foreign state where the alleged injury occurred and the procedural laws of the forum state.
Based on the Restatement § 6(2) factors, the public policy concerns of the forum state, the states in which the alleged injuries occurred, the expectations of toxic tort plaintiffs in general, and the basic policies of the field of toxic tort litigation weigh in favor of the application of the substantive law of the state in which the injury occurred. This choice of law limits the risk of forum shopping and any unintended consequences thereof. Further, the Restatement § 145(2) factors weigh approximately evenly in favor of various states because: (1) the states in which the injuries occurred and Defendants designed or manufactured paraquat remain unidentified; (2) Plaintiffs, respectively, reside in at least thirty-five different states; and (3) Defendant Syngenta is registered and based in Delaware, while Defendant Chevron is incorporated in Pennsylvania and based in California.
In their complaints, Plaintiffs plead their current states of residency but not the particular states where they were exposed to paraquat and subsequently diagnosed with and treated for Parkinson's disease. Within the lengthy, and sometimes temporally remote, timelines of Plaintiffs' respective exposures to paraquat, they had ample opportunity to move across state lines. Accordingly, Plaintiffs' current states of residency serve as imperfect but serviceable proxies for the states where their alleged injuries arose at this stage in the litigation.
Because Plaintiffs' exposures to paraquat and associated injuries arose in various foreign states, and Defendants' only connection to Delaware is Syngenta's incorporation in this State, each Plaintiff's state of residency has the most significant relationship to the dispute for purposes of substantive law determinations. Thus, the substantive laws of each Plaintiff's state of residency govern the substantive matters raised in his or her claims, and Delaware law governs the procedural matters.
B. Joinder
Defendants argue that the joinder of plaintiffs in sixteen of the cases is improper. In response, Plaintiffs assert that these joinders are proper because each Plaintiff alleges that the same product, manufactured by the same entities, caused the same illness.
T.I.s 71034440, 71461165.
T.I. 71340296.
Joinder of parties is a procedural matter, so Delaware law governs. Superior Court Civil Rule 20(a) permits the plaintiffs to join parties to the action by satisfying two requirements: "First, the right to relief asserted must arise out of the same transaction[, occurrence, or series of transactions or occurrences,] and second, there must exist some question of law or fact common to all the parties that will arise in the action." The rule is construed liberally and does not require "precise congruence of all factual and legal issues." Even one common question of law or fact between the parties suffices. "Marginally related" parties are permitted to join when joinder promotes judicial economy. The permissive joinder rule is designed to promote "trial convenience, expediting the final disposition of disputes and thereby preventing multiple lawsuits." This Court has refused to sever joined plaintiffs in a toxic tort suit with similar injuries when "[s]everance would be inefficient, duplicative, and expensive."
Hunt v. Ct. of Chancery, 2021 WL 2418984, at *3 (Del. June 10, 2021) (describing dismissal for failure to join an indispensable party as a "procedural issue"); El Paso Nat. Gas Co. v. Amoco Prod. Co., 1994 WL 728816, at *4 (Del. Ch. Dec. 16, 1994) ("Rather, matters that are usually treated as governed by local rules, even where the foreign law supplies the rule of decision on the substantive claim, are typically collateral to the question of substantive right: pretrial discovery rights, joinder of claims, perhaps evidence, procedures for trial or settlement of class actions, etc. . . . [T]hese adjudicative rights are often summarily described as 'procedural' rights.").
Sequa Corp. v. Aetna Cas. & Sur. Co., 1990 WL 123006, at *8 (Del. Super. July 13, 1990); Del. Super. Civ. R. 20(a). For the first requirement, "there exists no generalized test, but rather, the decisions reflect a case-by-case approach." Sequa Corp., 1990 WL 123006, at *8. In general, the Court applies "a liberal approach that has allowed courts to promote judicial economy by permitting reasonably related claims to be tried together." Id.
Sequa Corp., 1990 WL 123006, at *8.
Id.
Id. (quoting Mesa Comput. Utils., Inc. v. W. Union Comput. Utils., Inc., 67 F.R.D. 634, 638 (D. Del. 1975)).
Pallano v. AES Corp., 2016 WL 97496, at *2 (Del. Super. Jan. 4, 2016).
Id.
Here, Plaintiffs have satisfied Delaware's liberal rules for joinder. Plaintiffs' various complaints raise common law tort claims that arose from the same series of occurrences, namely, the series of exposures to the chemical paraquat. Each Plaintiff was exposed to this chemical through skin contact or ingestion. Plaintiffs raise common legal claims against Defendants, including strict products liability, negligence, and breach of implied warranty, based on Defendants' alleged design, manufacture, and sale of paraquat products. These factual and legal issues need not overlap precisely. Plaintiffs' claims are reasonably related, and severing the cases would be costly and detrimental to efficiency. Accordingly, to promote judicial convenience and expedite the disposition of these disputes, Plaintiffs' joinder is permitted in this case.
C. Statute of Limitations
Defendants argue that Plaintiffs' claims for breach of the implied warranty of merchantability are barred by the statute of limitations. Plaintiffs respond that their implied warranty claims comply with foreign states' statutes of limitations and that these foreign statutes of limitations govern because they all share a basis in the Uniform Commercial Code.
T.I.s 71034440, 71461165.
T.I. 71340296.
Statutes of limitations are generally considered procedural matters. The general rule is that the statute of limitations of the forum state applies, even when the substantive laws of a foreign state govern the parties' rights in the action. Still, the statute of limitations of a foreign state can be deemed a matter of substance, rather than procedure, when the statute of limitations is "inseparably interwoven" with the substantive laws of the foreign state. This occurs when a failure to apply the foreign statute of limitations "would be outcome-determinative" and cause a party to be "deprived of his legal rights."
Pivotal Payments Direct Corp. v. Planet Payment, Inc., 2015 WL 11120934, at *3 (Del. Super. Dec. 29, 2015).
Id. Delaware courts have held that "when a complaint alleging a cause of action that arose outside of Delaware is time-barred under the Delaware statute of limitations, the Court need not conduct a choice of law analysis and may apply the Delaware statute of limitations." Burrell v. AstraZeneca LP, 2010 WL 3706584, at *4 (Del. Super. Sept. 20, 2010).
US Dominion, Inc. v. Fox Corp., 2022 WL 2229781, at *6 n.68 (Del. Super. June 21, 2022).
Knauer v. GlaxoSmithKline, LLC, 2022 WL 18359403, at *7 (Del. Super. Dec. 29, 2022).
In Delaware, to determine the applicable statute of limitations for an action in which the plaintiff's injury arose in a foreign state, courts apply the borrowing statute, 10 Del. C. § 8121. Under the borrowing statute, "Delaware courts are obliged to apply the Delaware limitations period if it is 'shorter' than the statute of limitations that might apply from another jurisdiction."
Burrell v. AstraZeneca LP, 2010 WL 3706584, at *2-3 (Del. Super. Sept. 20, 2010).
Id. at *4. The purpose of the borrowing statute is to deter forum shopping. CHC Invs., LLC v. FirstSun Cap. Bancorp., 2020 WL 1480857, at *4-5 (Del. Ch. Mar. 23, 2020).
Here, Delaware procedural law on the statute of limitations governs. Plaintiffs have not demonstrated that any foreign state's statute of limitations is so inseparably interwoven with its substantive laws that Plaintiffs would be deprived of their legal rights if the Delaware statute of limitations was applied.
Delaware law imposes a four-year statute of limitations on actions for breach of a contract for the sale of goods, which includes actions based on an alleged breach of the implied warranty of merchantability. A cause of action for breach occurs "when the breach occurs," which is generally "when tender of delivery is made."Plaintiffs' respective breach of implied warranty claims were filed between April 1, 2022, and April 3, 2024.
6 Del. C. § 2-725(1) ("An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued."); Dalton v. Ford Motor Co., 2002 WL 338081, at *3 (Del. Super. Feb. 28, 2002).
Hence, for Plaintiffs who reside in Delaware, any implied warranty claims filed more than four years after he or she received a delivery of paraquat products must be dismissed. Applying the borrowing statute, for Plaintiffs who reside in a foreign state, any implied warranty claims filed more than four years after he or she received a delivery of paraquat products must also be dismissed. Further, if that Plaintiff resides in a state that has imposed a statute of limitations period of less than four years for breach of the implied warranty of merchantability, the more stringent statute of limitations period from the state of residency applies instead.
D. Statutes of Repose
Defendants argue that the statutes of repose of the states in which certain Plaintiffs reside bar those Plaintiffs' strict products liability, negligence, and implied warranty claims. Plaintiffs disagree.
T.I.s 71034440, 71461165.
T.I. 71340296.
Statutes of repose are a substantive matter, rather than procedural, so the laws of Plaintiffs' respective states of residency govern them. A statute of repose, or an analogous rule of law, limits the time period within which to file a strict products liability action in: (1) Alabama, if the last exposure to the substance occurred before January 2006, then within two years thereafter; (2) Georgia, within ten years after first purchase of the product; (3) Illinois, within the earlier of (a) twelve years after a seller's first sale, lease, or delivery or (b) ten years after a nonseller's first sale, lease, or delivery to the initial recipient; (4) Indiana, within ten years after the initial delivery to the consumer; (5) Iowa, within fifteen years after the first purchase of the product; and (6) Tennessee, within ten years after first purchase of the product.
326 Assocs., L.P. v. Progressive Servs., Inc., 2016 WL 1424563, at *2 (Del. Super. Mar. 29, 2016) ("Unlike a statute of limitation which is a procedural bar, a statute of repose is a substantive provision ....").
Jerkins v. Lincoln Elec. Co., 103 So.3d 1, 5 (Ala. 2011).
Ga. Code § 51-1-11(b)(2), (c).
735 Ill. Comp. Stat. 5/13-213(b).
Ind. Code § 34-20-3-1(b)(2). Indiana's statute of repose "does not apply to cases involving protracted exposure to an inherently dangerous foreign substance." Myers v. Crouse-Hinds Div. of Cooper Indus., Inc., 53 N.E.3d 1160, 1167 (Ind. 2016). But Plaintiffs have not established by supporting fact that paraquat is inherently dangerous, and some of the exposures are so limited in duration that they cannot be characterized as protracted, so the Indiana statute of repose is applicable in this case.
North Carolina also has a statute of repose for strict products liability claims,but an exception to the statute applies when the plaintiff's claim arises "out of a latent disease that manifests itself over a long period of time," such as "asbestosis, silicosis, and chronic obstructive lung disease." Plaintiffs allege that their exposures to paraquat gradually resulted in the contraction of Parkinson's disease. These allegations are sufficiently similar to the claims of latent diseases described in North Carolina case law. Thus, in this case, the claims of Plaintiffs who reside in North Carolina are excepted from that state's statute of repose.
N.C. Gen. Stat. § 1-46.1(1). The state applies a more stringent time limitation on strict products liability claims filed before October 1, 2009.
Cramer v. Ethicon, Inc., 2021 WL 243872, at *4-5 (W.D. N.C. Jan. 25, 2021) (citing Wilder v. Amatex Corp., 336 S.E.2d 66 (N.C. 1985)).
In sum, any strict products liability claims made by Plaintiffs who reside in Alabama, Georgia, Illinois, Indiana, Iowa, or Tennessee must be dismissed if the timeline of his or her exposure to or purchase of paraquat is inconsistent with the applicable statute of repose or analogous rule of law of the state of residency.
E. Preclusion by State Products Liability Acts
Defendants argue that the comprehensive products liability acts ("PLAs") adopted in states where certain Plaintiffs reside preclude the common law products liability claims raised by those Plaintiffs. Plaintiffs counter that these PLAs do not preclude implied warranty claims for economic losses and do not substantively extinguish their common law rights.
T.I.s 71034440, 71461165.
T.I. 71340296.
If a state law claim falls within the scope of a state PLA that includes a provision making the PLA an exclusive remedy, that claim is "subsumed within the PLA." Indeed, Delaware courts have a history of applying a foreign state's PLA when the plaintiff's products liability claim arose in that state.
Sun Chem. Corp. v. Fike Corp., 2019 WL 9525200, at *3 (3d Cir. Apr. 18, 2019).
Hagan v. Bos. Sci. Corp., 2021 WL 1921893, at *4-5 (Del. Super. May 12, 2021) (applying Tennessee Product Liability Act to substance of plaintiffs' products liability claims); Younce v. GlaxoSmithKline, LLC, 2022 WL 18359405, at *4-6 (Del. Super. Dec. 29, 2022) (holding that Ohio Products Liability Act abrogates Ohio common law products liability claims); Chatman v. Am. Med. Sys., Inc., 2019 WL 5802555, at *1 (Del. Super. Nov. 6, 2019) (applying time limitation of Louisiana Products Liability Act).
The states of Connecticut, Indiana, Kansas, Louisiana, Mississippi,New Jersey, Ohio, and Washington have adopted PLAs. The Connecticut PLA "does not preempt all common law theories of products liability." However, when claims for breach of the implied warranty of merchantability fall within Connecticut's PLA, "the claims are 'precluded,' not 'incorporated into' the CPLA." The PLAs of Indiana, Kansas, Louisiana, Mississippi, New Jersey, Ohio, and Washington supplant common law strict products liability claims in those states.
Conn. Gen. Stat. § 52-572n(a) ("A product liability claim as provided in sections 52-240a, 52240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product.").
Kan. Stat. § 60-3302 et seq.
La. Rev. Stat. § 9:2800.52 ("This Chapter establishes the exclusive theories of liability for manufacturers for damage caused by their products.").
Miss. Code § 11-63; Funches v. Progressive Tractor & Implement Co., 905 F.3d 846, 850 (5th Cir. 2018) ("The MPLA provides the exclusive remedy 'in any action for damages caused by a product' against a product manufacturer[, designer,] or seller.").
N.J. Stat. § 2A:58C-2; Fidelity & Guar. Ins. Underwriters, Inc. v. Omega Flex, Inc., 936 F.Supp.2d 441, 446 (D.N.J. 2013) ("Thus, under New Jersey law, the PLA governs any 'products liability action.'").
Ohio Rev. Code §§ 2307.71 et seq.; Kodger v. Zimmer Biomet Holdings, Inc., 2017 WL 4348997, at *5 (N.D. Ohio 2017) ("Product liability claims that are not brought under the OPLA must be dismissed."). The Ohio Product Liability Act abrogates common law products liability claims that accrue after April 7, 2005, but not those that accrued before that date. Alvarez v. Cooper Tire & Rubber Co., 2013 WL 226970, at *4 (Del. Super. Jan. 18, 2013).
Walters v. Howmedica Osteonics Corp., 676 F.Supp.2d 44, 48-49 (D. Conn. 2009) ("The enactment of the CPLA did not displace common law theories of liability.").
Collazo v. Nutribullet, 473 F.Supp.3d 49, 53 (D. Conn. 2020).
Cincinnati Ins. Cos. v. Hamilton Beach/Proctor-Silex, Inc., 2006 WL 299064, at *2 (N.D. Ind. Feb. 7, 2006) ("The IPLA is a codification of the common law doctrine of strict liability, through which the Indiana legislature intended to preempt the field of strict liability in tort.").
Fennesy v. LBI Mgmt., Inc., 847 P.2d 1350, 1354 (Kan.Ct.App. 1993) ("The KPLA applies to products liability claims involving . . . personal physical injuries.").
See supra note 61.
See supra note 62.
See supra note 63.
See supra note 64.
Strout v. Wal-Mart Stores, Inc., 2019 WL 3413636, at *9 (Wash.Ct.App. July 29, 2019) ("The WPLA is the exclusive remedy for product liability claims in Washington.").
Hence, any common law strict products liability claims made by Plaintiffs who reside in Connecticut, Indiana, Kansas, Louisiana, Mississippi, New Jersey, Ohio, or Washington must be dismissed because these claims are precluded by the exclusive remedy provided by the PLA of that state.
F. Strict Liability
Defendants argue that the states of Delaware and North Carolina do not recognize strict liability theories, so Plaintiffs who reside in those states must dismiss their strict products liability claims. Plaintiffs concede that North Carolina does not recognize strict products liability actions, but they maintain that Delaware has not rejected the doctrine of strict liability.
T.I.s 71034440, 71461165.
T.I. 71340296.
The elements of a cause of action are a substantive matter, so the laws of Plaintiffs' respective states of residency apply. Delaware case law is unambiguous: There is "no cause of action for strict products liability under Delaware law." Moreover, the Court lacks the power "to adopt the doctrine of strict liability in sales cases due to the preeminence of the Uniform Commercial Code in the sales field of law." Hence, any strict products liability claims filed by Plaintiffs who reside in the State of Delaware must be dismissed for failure to state a claim.
BeautyCon Media ABC Tr. v. New Gen. Mkt. Partners, LLC, 2023 WL 5164148, at *4-5 (Del. Super. Aug. 11, 2023) ("Determining the elements of a legal claim and whether such elements are sufficiently pled involves issues of substantive law.").
Courtney v. Intuitive Surgical, Inc., 2015 WL 6671558, at *2 (Del. Super. Oct. 30, 2015).
Id. at *2 n.8 (citing Cline v. Prowler Indus. of Md., Inc., 418 A.2d 968, 980 (Del. 1990)).
G. Vertical Privity
Defendants argue that the states of Florida, Georgia, and Kentucky impose a vertical privity requirement for an implied warranty claim, and Plaintiffs have not pleaded that they purchased paraquat directly from any of the Defendants. Hence, they submit that the implied warranty claims of Plaintiffs who reside in those states must be dismissed. Plaintiffs contend that further factual discovery is needed to determine whether they can establish vertical privity.
T.I.s 71034440, 71461165.
T.I. 71340296.
The elements of a cause of action are a substantive matter, so the laws of Plaintiffs' respective states of residency apply. The laws of the states of Florida, Georgia, and Kentucky require vertical privity of contract to state a claim for breach of the implied warranty of merchantability. In the context of an implied warranty claim, vertical privity requires that the plaintiff purchased the goods directly from the defendant. Here, Plaintiffs have not pleaded that they purchased paraquat products directly from Defendants, so any implied warranty claims filed by Plaintiffs who reside in Florida, Georgia, or Kentucky must be dismissed for failure to state a claim.
See supra note 77.
T.W.M. v. Am. Med. Sys., Inc., 886 F.Supp. 842, 844 (N.D. Fl. 1995) ("Because the complaint does not allege privity of contract, it fails to state a cause of action for breach of express or implied warranties under Chapter 672, Florida Statutes."); Bailey v. Monaco Coach Corp., 168 Fed.Appx. 893, 894 n.1 (11th Cir. 2006) ("Under Florida law, privity of contract is an essential element of a claim for breach of implied warranty.").
Edwards v. Wis. Pharmacal Co., 987 F.Supp.2d 1340, 1346 (N.D.Ga. 2013) ("Thus, a plaintiff who does not plead facts that allow the court to infer that he is in privity with the defendant or part of the statutory class of protected persons fails to state a claim for breach of an express or implied warranty."). An allegation that the defendants sold the product that the plaintiffs purchased, without an allegation that the defendants sold the product to the plaintiffs themselves, is insufficient. Id.
Compex Intern Co. v. Taylor, 209 S.W.3d 462, 465 (Ky. 2006) ("As discussed above, a seller's warranty protections are only afforded to one with whom there is privity of contract, or, to use the terms of the statute, a 'seller's' warranty protections are only afforded to 'his buyer.'"). An exception to the privity requirement applies for the buyer's family members, housemates, and certain guests. Id.
Privity generally turns on the extent of the direct contacts between the parties. See Padilla v. Porsche Cars N. Am., Inc., 391 F.Supp.3d 1108, 1118-19 (S.D. Fl. 2019).
H. Notice Requirement
Defendants argue that any Plaintiffs who reside in a state in which pre-suit notice is an element of an implied warranty claim should dismiss that claim because Plaintiffs have not pleaded that they provided Defendants with notice. Plaintiffs counter that the public policy of pre-suit notice contravenes the purpose of the Uniform Commercial Code and that, in certain states, an exception to the pre-suit notice requirement covers the implied warranty claims of Plaintiffs who reside there.
T.I.s 71034440, 71461165.
T.I. 71340296.
The elements of a cause of action are a substantive determination, so the laws of Plaintiffs' respective states of residency apply. The laws of the states of Arkansas, California, Missouri, New Jersey, North Carolina, Oregon, Pennsylvania, South Carolina, Tennessee, and Texas require prior notice of the breach to the defendant to state a claim for breach of an implied warranty. In Arkansas and Texas, a demonstration that the defendant had actual knowledge or reason to know of the breach satisfies the notice requirement.
See supra note 77.
Day Marine, Inc. v. El Do-Craft Boat Co., 1982 WL 881, at *2 (Ark. Ct. App. Nov. 10, 1982) ("In the instant case, although appellee pled breach of an implied warranty of merchantability and fitness for a particular purpose, there was no allegation in the complaint that appellee had given reasonable notice of the breach to appellant or that all conditions precedent had been met. This is required in order to recover on an action for breach of warranty, and it was error for the trial judge to award damages based on breach of warranty.").
Cal. Com. Code § 2607(3)(A) ("Where a tender has been accepted: The buyer must, within a reasonable time after he or she discovers or should have discovered any breach, notify the seller of breach or be barred from any remedy.").
Ragland Mills, Inc. v. Gen. Motors Corp., 763 S.W.2d 357, 360 (Mo.Ct.App. 1989) ("This court has held that in order to recover under the provisions of § 400.2-314 [for the implied warranty of merchantability], a plaintiff must prove . . . notice to the seller of the injury."). Still, the "buyer is only under a duty to notify the immediate seller, not the manufacturer." Reinbold v. AGCO Corp., 2023 WL 7408092, at *8 (E.D. Mo. Nov. 9, 2023).
Bacon v. Am. Ins. Co., 330 A.2d 389, 393 (N.J.Super. Ct. Law Div. 1974) ("To assert its remedies [for breach of an implied warranty] under N.J.S.A. 12A:2-714 and 2-715 the buyer must notify the seller within a reasonable time after he discovers, or should have discovered, the breach."); Powell v. Subaru of Am., Inc., 502 F.Supp.3d 856, 881 (D.N.J. 2020) (". . . [A]s Defendants have themselves conceded that New Jersey does not have a pre-suit notice requirement for warrant[y] claims, their motion to dismiss will be denied as to Eckhardt's claims.").
Maybank v. S.S. Kresge Co., 273 S.E.2d 681, 683-84 (N.C. 1981) ("We think it obvious from the language of the statute that seasonable notification is a condition precedent to the plaintiffbuyer's recovery.").
Western Feed Co. v. Heidloff, 270 P.2d 612, 621 (Or. 1962) ("Since seasonable notice is made by the statute a condition precedent to a right of recovery for breach of warranty, it has been held that notice must be pleaded and proved."); Owens v. Sears, Roebuck & Co., 273 F.2d 140, 142 (9th Cir. 1959) (quoting Tripp v. Renhard, 200 P.2d 644, 653 (Sup. Ct. Or. 1948)) ("The duty is the following: 'give notice to the seller of the breach of any promise or warranty.' The provision states clearly the time when the duty must be performed. The time schedule is: (1) 'after acceptance,' and (2) 'within a reasonable time after the buyer knows, or ought to know, of such breach.'").
Kee v. Zimmer, Inc., 871 F.Supp.2d 405, 410 (E.D. Penn. 2012) ("Where tender is accepted, a buyer must 'within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.'").
S.C. Code § 36-2-607(3)(a) ("Where a tender has been accepted the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy; however, no notice of injury to the person in the case of consumer goods shall be required.").
Bunn v. Navistar, Inc., 797 Fed.Appx. 247, 252 (6th Cir. 2020) (quoting Tenn. Code Ann. § 47-2607(3)) ("Where a tender has been accepted . . . the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.").
McKay v. Novartis Pharm. Corp., 751 F.3d 694, 705 (5th Cir. 2014) ("To recover on a breach of warranty claim in Texas, 'the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.'").
Jackson v. Swift-Eckrich, 830 F.Supp. 486, 491 (W.D. Ark. 1993).
Cone v. Vortens, Inc., 2019 WL 2070423, at *5 (E.D. Tex. Mar. 13, 2019).
Some states have placed exceptions on the notice requirement. In North Carolina, a breach of implied warranty claim can survive a motion to dismiss for a failure of pre-suit notice "[w]hen the plaintiff is a lay consumer and notification is given to the defendant by the filing of an action within the period of the statute of limitations, and when the applicable policies behind the notice requirement have been fulfilled." South Carolina and Tennessee do not require a demonstration of notice when the plaintiff is asserting a claim based on a personal injury.
Horne v. Novartis Pharms. Corp., 541 F.Supp.2d 768, 786-87 (W.D. N.C. 2008).
Moore v. BPS Direct, LLC, 2019 WL 2931463, at *9 (D.S.C. July 8, 2019) ("Finally, as Plaintiff is alleging personal injuries, no notice was required prior to suit.").
Smith v. Pfizer Inc., 688 F.Supp.2d 735, 751 (M.D. Tenn. 2010) ("These latter purposes are served just as well by the filing of a lawsuit as by a separate, pre-suit notification.").
Pennsylvania law "is neither well-settled nor self-evident" on the issue of what satisfies the notice requirement. The current state of the case law presents a schism: Some courts applying Pennsylvania law have held that "the filing of a civil complaint satisfies the requirement of providing breach of warranty notice." On the contrary, at least one other court applying Pennsylvania law held that a plaintiff's failure to plead notice warrants dismissal of his implied warranty claim.
Osness v. Lasko Prods., Inc., 868 F.Supp.2d 402, 412 n.12 (E.D. Penn. 2012) (quoting Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 26 n.17 (Penn. 2011)).
Bednarski v. Hideout Homes & Realty, Inc., 709 F.Supp. 90, 93-94 (M.D. Penn. 1988) ("It is thus clear that nothing in [Pennsylvania Commercial Code] section 1201 or 2607 specifically prohibits a civil complaint from serving as notice of a breach of warranty."); Confer v. Pall Corp., 2010 WL 11710657, at *2 (E.D. Penn. Mar. 2, 2010) ("Here, Plaintiffs' complaint served as notice, and consequently, Defendant was notified of the breach.").
Silva v. Rite Aid Corp., 416 F.Supp.3d 394, 401 (M.D. Penn. 2019) ("The second amended complaint is silent as to whether plaintiffs provided notice to Rite Aid of the alleged breach before commencing this litigation. Plaintiffs are therefore barred from obtaining 'any remedy' for these alleged breaches.").
Here, the essential elements of each Plaintiff's implied warranty of merchantability claim are determined according to the substantive laws of his or her state of residency. The implied warranty claims filed by Plaintiffs who reside in Arkansas, California, Missouri, New Jersey, North Carolina, Oregon, Pennsylvania, South Carolina, Tennessee, and Texas are subject to a requirement to plead notice of the breach to the defendant. Based on a review of the papers in this case, none of Plaintiffs demonstrated notice to the defendant. Accordingly, the implied warranty claims filed by Plaintiffs in the listed states fail to state an essential element, unless some exception to the notice requirement applies.
Plaintiffs did not plead that Defendants actually knew or had reason to know that they breached the implied warranty of merchantability, so Plaintiffs who reside in Arkansas and Texas are not covered by their states' exceptions to the notice requirement. Likewise, Plaintiffs have not pleaded that they are lay consumers of paraquat products, rather than commercial users, so Plaintiffs who reside in North Carolina cannot take advantage of the state's exception to the notice requirement.
However, Plaintiffs' allegations that exposure to the chemical paraquat caused them to contract Parkinson's disease are personal injury claims, so Plaintiffs who reside in South Carolina and Tennessee are covered by those states' exceptions to the notice requirement. While Pennsylvania law remains unsettled as to what satisfies the notice requirement, the bulk of the on-point case law indicates that filing a complaint which includes a breach of warranty claim satisfies the notice requirement. Accordingly, in this case, Plaintiffs who reside in Pennsylvania can make use of that state's exception to the notice requirement. Apart from the exception for the Pennsylvania Plaintiffs, the implied warranty claims filed by Plaintiffs who reside in Arkansas, California, Missouri, New Jersey, North Carolina, Oregon, and Texas must be dismissed for failure to state a claim.
Based on exceptions from state law, Plaintiffs who reside in Pennsylvania, South Carolina, and Tennessee are exempt from the notice requirement. These Plaintiffs' implied warranty claims do not fail to state a claim for failing to plead notice.
I. Pleading Negligence with Particularity
Defendants argue that Plaintiffs negligence claims fail to satisfy the heightened pleading standard. Plaintiffs respond that they have pleaded negligence with sufficient particularity.
T.I.s 71034440, 71461165.
T.I. 71340296.
Pleading requirements are generally considered procedural matters, but this Court has held that heightened pleading requirements can sometimes be substantive. Toxic tort litigation presents unique considerations for the Court at the pleading stage. Toxic tort plaintiffs must plead "a concise statement that provides the defendants with fair notice of the claim(s) including the identity of product and/or premises at issue." Nonetheless, these plaintiffs "usually cannot identify the products by brand name or the premises by address, nor should they be required to do so." But they "must attempt to draw a picture for the[] defendants by pleading factual circumstances that may not otherwise be required."
US Dominion, Inc. v. Fox News Network, LLC, 2023 WL 1067961, at *7 (Del. Super. Jan. 27, 2023) ("This Court held in Dominion I and Dominion II that standards of review are traditionally classified as procedural."). Delaware courts emphasize that use of forum pleading rules is often more efficient because "the forum law is to some extent already known and applying it thus involves little learning costs." Meyers v. Intel Corp., 2015 WL 227824, at *4 (Del. Super. Jan. 15, 2015) (quoting Kramer v. Am. Pac. Corp., 1998 WL 442766, at *3 (Del. Super. July 28, 1998)).
Knauer v. GlaxoSmithKline, LLC, 2022 WL 18359403, at *7-8 (Del. Super. Dec. 29, 2022) (heightened pleading standard "so inseparably interwoven" with substantive rights to be deemed substantive).
In re Benzene Litig., 2007 WL 625054, at *8 (Del. Super. Feb. 26, 2007).
Id.
When the plaintiffs are unable to identify the particular product that contained the allegedly harmful chemical, the following demonstration satisfies the pleading standard:
(1) a description of the product classification, e.g., cleaner, solvent, fuel, lubricant, etc.; (2) qualified by a meaningful description of the location and manner in which the product was used by the plaintiff or observed to be used by others; and (3) a description of the time frame, reasonably narrowed by due diligence, within which the alleged exposure occurred.
Id. at *9.
For the identity of the product, the "class of products within which the allegedly defective product fits" suffices. For the circumstances, the Court seeks a "meaningful explanation of the location and manner in which the product was used," supplemented with "a meaningful time frame within which [the plaintiff] was exposed to the allegedly defective product" that must be narrowed to "no more than a span of years, not decades."
Id. at *8.
Id.
Delaware law governs the pleading requirements in this case, as a matter of procedure, and Plaintiffs have not demonstrated that the heightened pleading standard of any foreign state is so inextricably tied to its substantive laws that Plaintiffs' rights are put in jeopardy by an application of Delaware law.
Plaintiffs have satisfied Delaware's heightened pleading standard for negligence. The complaints filed by Plaintiffs meaningfully describe the class of paraquat products that they encountered, the way that Plaintiffs used and encountered these products, and the time frames of their exposures, down to the particular years that the exposures began and ended. Plaintiffs failed to identify the states in which they were exposed to paraquat, using their current states of residency as a proxy. This oversight deprives the parties of some useful information. But it does not sink Plaintiffs' pleadings below the threshold standard for pleading negligence in Delaware. Plaintiffs have still presented Defendants with concise statements of their claims that provide fair notice of the paraquat products and alleged injuries at issue in this case. The claims satisfy the heightened pleading standard. Hence, Plaintiffs' negligence claims need not be dismissed for failure to plead negligence with particularity.
J. Punitive Damages
Defendants argue that the states of Michigan and Washington bar punitive damages awards, so Plaintiffs who reside in those states must dismiss their claims for punitive damages. Plaintiffs assert that the substantive laws of these states permit Plaintiffs to state claims for punitive damages.
T.I.s 71034440, 71461165.
T.I. 71340296.
The measure and elements of damages are substantive matters, not procedural, so the laws of the foreign states govern. The laws of the states of Michigan and Washington generally prohibit recovery of punitive damages. In this case, Plaintiffs who reside in Michigan and Washington have not pointed to any legal exception to these states' prohibitions on punitive damages that applies to their claims. Accordingly, all punitive damages claims made by Plaintiffs who reside in the States of Michigan and Washington must be dismissed.
Goldsmith v. Doctors for Emergency Servs., Inc., 1988 WL 22238, at *3 (Del. Super. Mar. 1, 1988) (citing Anderson-Thompson, Inc., v. Logan Grain Co., 238 F.2d 598 (10th Cir. 1956)) ("measure and elements of damages relate to 'substance,' not procedure").
United Rentals (NA) v. Keizer, 2001 WL 35916111, at *5 (W.D. Mich. Mar. 13, 2001) ("Punitive damages are clearly unavailable in Michigan."). An exception applies "if they [punitive damages] are expressly authorized by statute." Casey v. Auto Owners Ins. Co., 729 N.W.2d 277, 286 (Mich. Ct. App. 2006). Plaintiffs have not pointed to a Michigan state statute that expressly authorizes punitive damages in this case.
Lister v. Phan, 194 Wash.App. 1025, 1025 (Wash.Ct.App. June 2016) ("But Lister did not assert punitive damages in her complaint. Nor are they awardable in a personal injury action."). Washington courts may award punitive damages then applying the laws of another state "when that state has an interest in punishing or deterring egregious conduct that is greater than any interest Washington has in not allowing punitive damages." Erickson v. Pharmacia LLC, 2024 WL 1905209, at *15 (Wash.Ct.App. May 1, 2024). But this does not mean that the substantive law of the state of Washington authorizes punitive damages. Further, Washington courts allow recovery of punitive damages when "expressly authorized by statute." Kennewick Educ. Ass'n v. Kennewick Sch. Dist. No. 17, 666 P.2d 928, 930 (Wash.Ct.App. 1983). But Plaintiffs do not point to any Washington state statute that expressly authorizes punitive damages.
K. The John Doe Defendants
Defendants argue that Delaware law bars fictitious name practice, so Plaintiffs should dismiss the John Does. Plaintiffs respond that foreign name practice is a substantive matter, so the laws of the respective foreign states apply. Further, Plaintiffs argue that, even though Delaware does not recognize fictitious name practice, Delaware law does not mandate that the Court dismiss the John Does.
T.I.s 71034440, 71461165.
T.I. 71340296.
Fictitious name practice rules are a procedural matter. Accordingly, Delaware law governs the matter, regardless of which state's substantive laws otherwise apply. Delaware law is unambiguous on the issue of fictitious name practice: "[F]ictitious name practice is not permitted. This is because there is no statute or rule specifically authorizing fictitious name practice. Filing a claim against 'John Doe' has no legal effect in this State." Here, Delaware law clearly prohibits fictitious name practice, so all John Does must be dismissed from Plaintiffs' actions.
Delaware case law does not expressly describe fictitious name practice rules as procedural. However, Delaware's sister jurisdiction of New Jersey treats fictitious name practice as a procedural matter, and the United States Court of Appeals for the Third Circuit has enforced this categorization. See Royal Indem. Co. v. Petrozzino, 598 F.2d 816, 820 (3d Cir. 1979) ("The [fictitious name practice] rule, being procedural, is in general to be deemed applicable to actions pending on its effective date as well as those instituted thereafter."); Juzwin v. Asbestos Corp., 900 F.2d 686, 690 n.4 (3d Cir. 1990) ("However, the New Jersey fictitious defendant rule is not available to a plaintiff in federal court since it is a procedural device, not a rule of substantive law.").
Dayton v. Collison, 2018 WL 565304, at *2 (Del. Super. Jan. 24, 2018) (quoting Haskins v. Kay, 2007 WL 4662114, at *5 (Del. Super. Sept. 27, 2007)).
CONCLUSION
Based on all of these reasons, the Court holds as follows: (1) Plaintiffs' joinder is permitted. (2) Implied warranty claims made by Delaware Plaintiffs more than four years after he or she received a delivery of paraquat products are dismissed. (3) Implied warranty claims made by foreign state Plaintiffs more than four years-or a shorter duration if so provided by that state's statute of limitations-after he or she received a delivery of paraquat products are dismissed. (4) Strict products liability claims made by Alabama, Georgia, Illinois, Indiana, Iowa, and Tennessee Plaintiffs are dismissed if the timeline of his or her exposure to or purchase of paraquat is inconsistent with the statute of repose or analogous rule of law of the state of residency. (5) Common law strict products liability claims made by Connecticut, Indiana, Kansas, Louisiana, Mississippi, New Jersey, Ohio, and Washington Plaintiffs are dismissed as precluded by their respective state PLAs. (6) Strict products liability claims made by Delaware Plaintiffs are dismissed for failure to state a claim. (7) Implied warranty claims made by Florida, Georgia, and Kentucky Plaintiffs are dismissed for failure to plead vertical privity. (8) Implied warranty claims made by Arkansas, California, Missouri, New Jersey, North Carolina, Oregon, and Texas Plaintiffs are dismissed for failure to plead notice of the breach. (9) Punitive damages claims by Michigan and Washington Plaintiffs are dismissed for failure to state a claim. (10) All John Does are dismissed from the case. Consistent with the foregoing, Defendants' motion to dismiss is GRANTED in part and DENIED in part.
IT IS SO ORDERED.