Opinion
Case No. 2:21-cv-01766-GMN-NJK
2023-10-16
Angela UNDERWOOD, Personal Representative for the Estate of Tyler Underwood, Plaintiff, v. O'REILLY AUTO PARTS, INC., et al., Defendants.
Andrew J. DuPont, Pro Hac Vice, Locks Law Firm, Philadelphia, PA, Jennifer L. Emmons, Pro Hac Vice, Cohen Placitella & Roth PC, Philadelphia, PA, Cliff W. Marcek, Cliff W. Marcek, P.C., Las Vegas, NV, for Plaintiff. David Sexton, Fabian VanCott, Las Vegas, NV, Kurt R. Bonds, Hall & Evans, LLC, Las Vegas, NV, Nicholas Fredrick Psyk, Tyson & Mendes, Henderson, NV, for Defendant O'Reilly Auto Enterprises, LLC. Gary J. Saalman, Pro Hac Vice, Vorys, Sater, Seymour and Pease LLP, Columbus, OH, Michael E. Stoberski, Thomas D. Dillard, Paterno C. Jurani, Olson, Cannon, Gormley, Angulo & Stoberski, Las Vegas, NV, Eric O. Freeman, Hawkins Parnell & Young, LLP, Las Vegas, NV, for Defendant Illinois Tool Works, Inc. James E. Cavanaugh, Robert E. Schumacher, Gordon Rees Scully Mansukhani LLP, Las Vegas, NV, for Defendant The Blaster Corporation. Michael E. Stoberski, Thomas D. Dillard, Paterno C. Jurani, Olson, Cannon, Gormley, Angulo & Stoberski, Las Vegas, NV, Eric O. Freeman, Hawkins Parnell & Young, LLP, Las Vegas, NV, for Defendants CRC Industries, Inc., Ashland, LLC, Citgo Petroleum Corporation. Alexander Anolik, Pro Hac Vice, Harris Beach, PLLC, New York, NY, Omar Nasar, Pro Hac Vice, New York, NY, Christopher C. Palermo, Pro Hac Vice, Harris Beach PLLC, White Plains, NY, Darrell D. Dennis, Steven B. Abbott, Steven L. Foremaster, I, Lewis Brisbois Bisgaard & Smith, LLP, Las Vegas, NV, for Defendant Safety-Kleen Systems, Inc. Adam P. McMillen, Wilson Elser Moskowitz Edelman & Dicker LLP, Las Vegas, NV, Kenneth K. Ching, Resnick & Louis, P.C., Las Vegas, NV, Troy Clark, Resnick & Lewis, P.C., Las Vegas, NV, for Defendant Highland Stores, Inc. Melissa J. Roose, Resnick & Louis, P.C., Las Vegas, NV, for Defendants 7-Eleven, Inc., Richard A. Haley. Jonathan B. Owens, Messner Reeves LLP, Las Vegas, NV, for Defendant Autozone Stores, LLC. Alexandra G. Farone, Pro Hac Vice, Babst Calland, Pittsburgh, PA, Joshua Snyder, Pro Hac Vice, Pittsburgh, PA, Ellsie Elena Lucero, Wood Smith Henning & Berman, Las Vegas, NV, Ryan M. Lower, Kaempfer Crowell, Ltd., Las Vegas, NV, Kathy K. Condo, Pro Hac Vice, Babst, Calland, Clements and Zomnir, P.C., Pittsburgh, PA, for Defendant Amrep, Inc. Chad Harrison, Gordon Rees Scully Mansukhani, Las Vegas, NV, Hollingsworth Barret Marshall, Jr., Gordon Rees Scully Mansukhani, LLP, Dallas, TX, Theodore Yarbrough, Pro Hac Vice, Gordon & Rees, Coronado, CA, for Defendant Advance Stores Company, Incorporated. Brian K. Walters, Gordon Rees Scully Mansukhani, LLP, Las Vegas, NV, for Defendant Sunnyside Corporation. Ian Gordon Schuler, Bowman and Brooke LLP, San Diego, CA, Justin D. Niznik, Pro Hac Vice, Bowman and Brooke, LLP, Lake Mary, FL, Lauren Miller, Pro Hac Vice, Bowman and Brooke LLP, San Jose, CA, Mario D. Valencia, Mario D. Valencia, Attorney at Law, LLC, Henderson, NV, for Defendant W.M. Barr & Company, Inc. Marisa A. Pocci, Jamie Scott Hendrickson, Litchfield Cavo LLP, Las Vegas, NV, for Defendant Technical Chemical Company. Alexandria LaVonne Layton, Jay Joseph Schuttert, Evans Fears Schuttert McNulty Mickus, Las Vegas, NV, Justin S. Hepworth, Clyde & Co., Las Vegas, NV, for Defendant Calumet Branded Products, LLC. Eleanor Deirdre Murphy, Kenneth K. Ching, Todd L. Swift, Resnick & Louis, P.C., Las Vegas, NV, for Defendant RM Markets, Inc. Audrey O. Anyaele, Pro Hac Vice, Maron Marvel Bradley Anderson & Tardy, Jersey City, NJ, Kurt R. Bonds, Hall & Evans, LLC, Las Vegas, NV, for Defendant Tower Energy.
Andrew J. DuPont, Pro Hac Vice, Locks Law Firm, Philadelphia, PA, Jennifer L. Emmons, Pro Hac Vice, Cohen Placitella & Roth PC, Philadelphia, PA, Cliff W. Marcek, Cliff W. Marcek, P.C., Las Vegas, NV, for Plaintiff.
David Sexton, Fabian VanCott, Las Vegas, NV, Kurt R. Bonds, Hall & Evans, LLC, Las Vegas, NV, Nicholas Fredrick Psyk, Tyson & Mendes, Henderson, NV, for Defendant O'Reilly Auto Enterprises, LLC.
Gary J. Saalman, Pro Hac Vice, Vorys, Sater, Seymour and Pease LLP, Columbus, OH, Michael E. Stoberski, Thomas D. Dillard, Paterno C. Jurani, Olson, Cannon, Gormley, Angulo & Stoberski, Las Vegas, NV, Eric O. Freeman, Hawkins Parnell & Young, LLP, Las Vegas, NV, for Defendant Illinois Tool Works, Inc.
James E. Cavanaugh, Robert E. Schumacher, Gordon Rees Scully Mansukhani LLP, Las Vegas, NV, for Defendant The Blaster Corporation.
Michael E. Stoberski, Thomas D. Dillard, Paterno C. Jurani, Olson, Cannon, Gormley, Angulo & Stoberski, Las Vegas, NV, Eric O. Freeman, Hawkins Parnell & Young, LLP, Las Vegas, NV, for Defendants CRC Industries, Inc., Ashland, LLC, Citgo Petroleum Corporation.
Alexander Anolik, Pro Hac Vice, Harris Beach, PLLC, New York, NY, Omar Nasar, Pro Hac Vice, New York, NY, Christopher C. Palermo, Pro Hac Vice, Harris Beach PLLC, White Plains, NY, Darrell D. Dennis, Steven B. Abbott, Steven L. Foremaster, I, Lewis Brisbois Bisgaard & Smith, LLP, Las Vegas, NV, for Defendant Safety-Kleen Systems, Inc.
Adam P. McMillen, Wilson Elser Moskowitz Edelman & Dicker LLP, Las Vegas, NV, Kenneth K. Ching, Resnick & Louis, P.C., Las Vegas, NV, Troy Clark, Resnick & Lewis, P.C., Las Vegas, NV, for Defendant Highland Stores, Inc.
Melissa J. Roose, Resnick & Louis, P.C., Las Vegas, NV, for Defendants 7-Eleven, Inc., Richard A. Haley.
Jonathan B. Owens, Messner Reeves LLP, Las Vegas, NV, for Defendant Autozone Stores, LLC.
Alexandra G. Farone, Pro Hac Vice, Babst Calland, Pittsburgh, PA, Joshua Snyder, Pro Hac Vice, Pittsburgh, PA, Ellsie Elena Lucero, Wood Smith Henning & Berman, Las Vegas, NV, Ryan M. Lower, Kaempfer Crowell, Ltd., Las Vegas, NV, Kathy K. Condo, Pro Hac Vice, Babst, Calland, Clements and Zomnir, P.C., Pittsburgh, PA, for Defendant Amrep, Inc.
Chad Harrison, Gordon Rees Scully Mansukhani, Las Vegas, NV, Hollingsworth Barret Marshall, Jr., Gordon Rees Scully Mansukhani, LLP, Dallas, TX, Theodore Yarbrough, Pro Hac Vice, Gordon & Rees, Coronado, CA, for Defendant Advance Stores Company, Incorporated. Brian K. Walters, Gordon Rees Scully Mansukhani, LLP, Las Vegas, NV, for Defendant Sunnyside Corporation.
Ian Gordon Schuler, Bowman and Brooke LLP, San Diego, CA, Justin D. Niznik, Pro Hac Vice, Bowman and Brooke, LLP, Lake Mary, FL, Lauren Miller, Pro Hac Vice, Bowman and Brooke LLP, San Jose, CA, Mario D. Valencia, Mario D. Valencia, Attorney at Law, LLC, Henderson, NV, for Defendant W.M. Barr & Company, Inc.
Marisa A. Pocci, Jamie Scott Hendrickson, Litchfield Cavo LLP, Las Vegas, NV, for Defendant Technical Chemical Company.
Alexandria LaVonne Layton, Jay Joseph Schuttert, Evans Fears Schuttert McNulty Mickus, Las Vegas, NV, Justin S. Hepworth, Clyde & Co., Las Vegas, NV, for Defendant Calumet Branded Products, LLC.
Eleanor Deirdre Murphy, Kenneth K. Ching, Todd L. Swift, Resnick & Louis, P.C., Las Vegas, NV, for Defendant RM Markets, Inc.
Audrey O. Anyaele, Pro Hac Vice, Maron Marvel Bradley Anderson & Tardy, Jersey City, NJ, Kurt R. Bonds, Hall & Evans, LLC, Las Vegas, NV, for Defendant Tower Energy.
ORDER
Gloria M. Navarro, District Judge
Pending before the Court is the Motion to Dismiss, (ECF No. 312), filed by Defendant Tower Energy Group ("Defendant"). Plaintiff Angela Underwood ("Plaintiff") filed a Response, (ECF No. 326), to which Defendant filed a Reply, (ECF No. 328).
On March 10, 2022, an Emergency Joint Motion for Extension of Discovery Deadlines was filed stating that the original Plaintiff, Tyler Underwood, died during the pendency of this action. (J. Mot. Extension Disc. Deadlines 9:4-10, ECF No. 112). Tyler Underwood's counsel subsequently filed a Motion to Substitute Angela Underwood, Tyler Underwood's mother, as the Plaintiff in this case. (See generally Mot. Substitute, ECF No. 116). The Court later granted Tyler Underwood's Motion to Substitute Party. (ECF No. 138). Accordingly, Angela Underwood is now the Plaintiff in this lawsuit.
For the reasons discussed below, the Court DENIES in part and GRANTS in part Defendant's Motion to Dismiss.
I. BACKGROUND
This case arises from Tyler Underwood's alleged personal injuries caused by his exposure to benzene contained in products sold by O'Reilly Auto Parts, Inc., Illinois Tool Works, Inc., The Blaster Corporation, CRC Industries, Inc., Safety-Kleen, Highland Stores, Inc., Bi-Rite Markets, Inc., 7-Eleven, Inc., Richard A. Haley, Autozone Stores, LLC, Amrep, Inc., Advance Stores Company, Incorporation, Ashland, LLC, Calumet Branded Products, LLC, Sunnyside Corporation, W.M. Barr & Company, Technical Chemical Company, RM Markets, Inc., Citgo Petroleum Corporation, and Tower Energy Group in the State of Nevada ("Defendants"). (Second Am. Compl. ("SAC") ¶¶ 6, 20-21, ECF No. 302). From 2006 to 2020, Tyler Underwood repaired, restored, and maintained vehicles and equipment in Nevada and Arizona. (Id. ¶¶ 11-18). Plaintiff alleges that while working, Tyler Underwood was exposed to benzene from products manufactured, marketed, supplied, distributed, and sold by Defendants. (Id. ¶¶ 20-21). As a result of his exposure to benzene, Plaintiff alleges that Tyler Underwood developed a myriad of health complications, including Acute Myelogenous Leukemia ("AML"), multiple related blood and bone marrow effects, cellular abnormalities, anemia, genotoxic effects,
and DNA damage which ultimately resulted in his death. (Id. ¶ 22-23). Plaintiff avers that studies, reports, and statements from organizations such as the National Institute for Occupational Safety and Health ("NIOSH"), the Occupational Safety and Health Administration ("OSHA"), the United States Environmental Protection Agency ("EPA"), International Agency for Research on Cancer ("IARC"), United States National Cancer Institute ("USNCI"), European Chemicals Agency Committee for Risk Assessment ("ECACRA"), and American Conference for Governmental Industrial Hygienists ("ACGIH") show that benzene exposure is capable of causing AML as well as the other medical conditions Tyler Underwood was diagnosed with. (Id. ¶¶ 32-41).
As relevant here, Plaintiff alleges that Defendant is liable for placing its allegedly defective gasoline and diesel fuel in the "stream of commerce." (Id. ¶ 24(r)). Plaintiff posits that all Defendants, including Defendant, "failed to warn consumers," including Plaintiff, "of the dangers associated with occupational exposure to benzene." (Id. ¶ 25). Plaintiff does not identify the specific labels or warnings contained on Defendant's products. (See generally id.). Instead, Plaintiff alleges that "any label appearing on the pump at the" 7-Eleven gas station at 5700 Sun Valley Boulevard, Sun Valley, Nevada, where Tyler Underwood shopped "would be the label applicable to ... Defendant['s]" products because Defendant was "the source of gasoline sold by 7-Eleven and there is no evidence that any label issued by ... Defendant was provided directly by ... Defendant[ ] to Tyler Underwood[.]" (Id. ¶ 71). Plaintiff further avers that 7-Eleven corporate representative Ronnie Fulenchek ("Mr. Fulenchek"), testified that 7-Eleven gasoline pump labels contained no "cancer warnings or benzene cancer warnings" from 2004 to 2013. (Id. ¶ 73).
Plaintiff alleges that the benzene contained in Defendants' products "[are] unnecessary for the proper functioning of the product, and therefore, could "have been eliminated or substantially reduced." (Id. ¶ 33). Plaintiff further posits that Defendants made "material misrepresentations, and/or omitted material information, relating to the benzene content and health hazards of [its] products." (Id. ¶ 43). As a result of these defects, as well as the material misrepresentations and omissions, Plaintiff asserts Defendants violated the duty of care owed to all consumers and workers, including Tyler Underwood. (Id.).
Plaintiff filed the instant Second Amended Complaint asserting the following claims: (1) negligence; (2) gross negligence; (3) strict liability; (4) breach of the express and implied warranties; and (5) wrongful death. (Id. ¶¶ 46-117). Defendant subsequently filed the present Motion to Dismiss, (ECF No. 312), which the Court discusses below.
II. LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The allegations "must be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1). And the complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005).
Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A pleading must give fair notice of a legally cognizable
claim and the grounds on which it rests, and although a court must take all factual allegations as true, legal conclusions couched as factual allegations are insufficient. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Accordingly, Rule 12(b)(6) requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). "However, material which is properly submitted as part of the complaint may be considered." Id. Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). On a motion to dismiss, a court may also take judicial notice of "matters of public record." Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if a court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. Fed. R. Civ. P. 12(d).
If the court grants a motion to dismiss for failure to state a claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the court should "freely" give leave to amend "when justice so requires," and in the absence of a reason such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
III. DISCUSSION
Defendant moves to dismiss Plaintiff's claims for negligence, gross negligence, express and implied warranty, strict product liability, and wrongful death. (See generally MTD). The Court first examines Plaintiff's claims for negligence and gross negligence.
Defendant argues that because Plaintiff's "wrongful death claim stems from [her] other causes of action, it follows that any claim for wrongful death" should be dismissed "assuming" Plaintiff's remaining causes of actions are dismissed. (MTD 10:16-26). For the reasons set forth below, the Court declines to dismiss Plaintiff's negligence, gross negligence, strict product liability design and manufacturing defect, and implied warranty of merchantability claims. Because Plaintiff has surviving causes of action, and Defendant advances no other argument why Plaintiff's wrongful death claim is insufficiently pled, the Court declines to dismiss. Plaintiff's wrongful death claim.
A. Negligence & Gross Negligence
Defendant argues that Plaintiff's negligence and gross negligence claims fail because the Second Amended Complaint
only generally refers to the conduct of all defendants and their respective products "without alleging any sufficient details regarding [Defendant's] conduct and the gasoline supplied by [Defendant]." (Reply 7:6-10, ECF No. 326); (see also MTD 5:7-7:15).
To state claim for negligence under Nevada law, a plaintiff must allege: (1) the existence of a duty of care; (2) breach of that duty; (3) legal causation; and (4) damages. DeBoer v. Sr. Bridges of Sparks Fam. Hosp., 128 Nev. 406, 282 P.3d 727, 732 (2012) (citations omitted). "A claim for gross negligence claim is separate from a normal negligence claim." Gaming v. Trustwave Holdings, Inc., No. 2:15-cv-02464, 2016 WL 5799300, at *6 (D. Nev. Sept. 30, 2016). "[T]o state a claim for gross negligence a plaintiff must establish that the defendant failed 'to exercise even the slightest degree of care' in his conduct." Id. (quoting Hart v. Kline, 61 Nev. 96, 116 P.2d 672, 673-74 (1941)); see Smith v. Wolf Performance Ammunition, No. 2:13-cv-2223, 2015 WL 2359063, at *3 (D. Nev. May 18, 2015) ("'Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a prudent man.'") (quotation omitted).
"At the pleading stage, a plaintiff is not expected, nor in most cases able to, articulate a claim's precise factual contours that may only later be elicited through discovery." (Order 7:18-20, ECF No. 297). Therefore, Plaintiff's negligence and gross negligence claims are not deficient because she fails to allege the precise timeframe of Tyler Underwood's benzene exposure. See Sorvillo v. Ace Hardware Corp., No. 2:13cv-629, 2014 WL 3611147, at *2 (S.D. Fla. July 22, 2014) ("Barr argues that the First Amended Complaint is deficient because Sorvillo does not allege how many hours she was exposed to the Products, the specifics of her leukemia diagnosis, or when she first experienced symptoms. Such specificity is not required to state a cause of action for negligence."); Singleton v. Chevron USA, Inc., 835 F. Supp. 2d 144, 148 (E.D. La. 2011) ("The mere fact that Mr. Singleton does not yet point to a specific Valspar product and specific dates of exposure does not make the claim implausible under Iqbal."); Moore v. BASF Corp., No. 11-cv-1001, 2011 WL 5869597, at *6 (E.D. La. Nov. 21, 2011) ("Plaintiffs' failure to point to the specific products ..., and to name the exact dates when and places where exposure to defendants' products occurred does not make the claim implausible at the pleading stage."); Martin v. Crown Equip. Corp., No. 1:13-cv-174, 2013 WL 12063924, at *2 (N.D. Ga. Apr. 15, 2013) ("Plaintiffs' failure to allege the specific 'brand' of the product or the precise dates of Mr. Martin's exposure does not make their claims implausible."); see also Opperman v. Path, Inc., 84 F. Supp. 3d 962, 982 (N.D. Cal. 2015) ("[T]he gaps in Plaintiffs' 'when' allegations are not fatal to Plaintiffs' Tobacco III claims. Instead, individual Plaintiffs' exposure to Apple's campaign can be tested after discovery permits further factual development.").
Here, Plaintiff's Second Amended Complaint alleges that Tyler Underwood was exposed to gasoline and diesel fuel containing benzene manufactured and sold by Defendant to the 7-Eleven gasoline station at 5700 Sun Valley Boulevard, Sun Valley, Nevada, and that this exposure to benzene caused him to contract fatal medical conditions, including AML. (SAC ¶ 24(u), 31, 71). It further avers that Defendants, including Defendant, included benzene in its products despite knowing of the risks associated with benzene exposure, thereby creating an imminent danger for users of the products such as Tyler Underwood. (Id.
¶ 25, 46). Plaintiff's assertion that Defendant included benzene in its products despite knowledge of the known danger associated with inclusion is sufficient to sustain her negligence and gross negligence claims. Sorvillo, 2014 WL 3611147, at *2; see also Larsen-Anstine v. Shell Oil Co., No. 3:07-cv-290, 2007 WL 2079845, at *2 (N.D. Tex. July 19, 2007) (finding the plaintiff stated legally cognizable claims for negligence and gross negligence where she alleged the defendants "manufactured, marketed, sold and/or supplied" products containing benzene" and that the decedent's exposure "to these products caused [his] leukemia and [ ] subsequent death"). At this stage in the proceeding, these allegations allow the Court "to draw the inference that [Defendant] is liable for the misconduct alleged." Iqbal, 556 U.S. at 664, 129 S.Ct. 1937.
The remaining issue is whether Plaintiff adequately alleged medical causation. The Court's previous Order advised Plaintiff that she "must include allegations which permit the reasonable inference that benzene exposure can cause the medical conditions Tyler Underwood was diagnosed with." (Order 8:3-5). Plaintiff's Second Amended Complaint relies on a myriad of studies, reports, and statements from organizations that assert benzene exposure can cause AML and Tyler Underwood's other medical conditions. (SAC ¶¶ 32-41). Defendant may ultimately show that Plaintiff's reliance on this literature is misplaced, but at this stage in the litigation, Plaintiff's allegations go beyond the "unadorned, the-defendant-unlawfully-harmed-me accusation," Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, and permit the reasonable inference that benzene exposure caused the medical conditions Tyler Underwood was diagnosed with. Accordingly, the Court declines to dismiss Plaintiff's negligence and gross negligence claims.
B. Strict Product Liability
A plaintiff may bring a strict product liability claim on the theory of defect by failure to warn, defect by design, or defect by manufacturing. Id. Here, Plaintiff brings a claim under all three theories. The Court begins with Plaintiff's strict liability failure to warn claim.
1. Failure to Warn
The Court's previous Order found that "Plaintiff's Amended Complaint allege[d] at length 'the language that is [allegedly] omitted' from Defendants' products but neglect[ed] to 'address the language that does appear' in Defendant's products." (Order 9:15-18) (citing Kwasniewski v. Sanofi-Aventis U.S. LLC, No. 2:12-cv-00515, 2018 WL 6566560, at *3 (D. Nev. Nov. 1, 2008)). The Court explained that "to determine whether a failure to warn claim is plausible and not just hypothetically possible, Plaintiff must allege the warning labels language that currently appears on Defendant's product, and why this warning is deficient under the circumstances." (Id. 10:1-6).
"A product may be found unreasonably dangerous and defective if the manufacturer failed to provide an adequate warning." Rivera v. Philip Morris, Inc., 125 Nev. 185, 209 P.3d 271, 275 (2009) (quoting Fyssakis v. Knight Equip. Corp., 108 Nev. 212, 826 P.2d 570, 571 (1992)). "A product may be found unreasonably dangerous and defective if the manufacturer failed to provide an adequate warning." Id. "Nevada law requires that warnings adequately communicate any dangers that may flow form the use or foreseeable misuse of a product." Yamaha Motor Co., U.S.A. v. Arnoult, 114 Nev. 233, 955 P.2d 661, 665 (1998) (citing Fyssakis, 826 P.2d at 571-72). Plaintiff's Second Amended Complaint again does not identify the language used in Defendant's warning labels. (See generally SAC). Instead, Plaintiff alleges that "any label appearing on the pump at the" 7-Eleven gas station at 5700 Sun Valley Boulevard, Sun Valley, Nevada, where Tyler Underwood shopped "would be the label applicable to ... Defendant['s]" products because Defendant was "the source of gasoline sold by 7-Eleven and there is no evidence that any label issued by ... Defendant was provided directly by ... Defendant[ ] to Tyler Underwood[.]" (Id. ¶ 71).
At its core, Plaintiff asserts that 7-Eleven's descriptions, representations, and labels should be applied to Defendant because Defendant supplied 7-Elevent with gasoline and diesel fuel. But Plaintiff provides no allegation(s) to reasonably infer its theory of imputation. Contrary to Plaintiff's position, simply because Defendant supplied 7-Eleven with gasoline and diesel fuel does not support the inference that 7-Eleven's descriptions, representations, and labels can be imputed to Defendant. See Musembi v. DePuy Spine, Inc., No. 2:08-cv-0339, 2009 WL 10693806, at *4 (D. Nev. Sept. 21, 2009) (determining the plaintiff's express warranty claim failed where the plaintiff submitted no evidence she received any communications from defendant, but instead, only proffered statements "allegedly made to her treating physician" which the plaintiff sought to attribute to defendant). And because Plaintiff fails to plausibly allege her theory of imputation, her failure to warn claim is predicated on legal supposition rather than fact. See Hogate v. Citgo Petroleum Corp., No. 09-cv-3511, 2010 WL 11537435, at *3 (D. Minn. May 12, 2010) (finding the plaintiff's failure to warn strict product liability claim in a benzene exposure case was based "largely [on] legal supposition" where the plaintiff did not "identif[y] specifically how the warnings are insufficient"). Accordingly, the Court will DISMISS with prejudice Plaintiff's failure to warn claim.
Although leave to amend should be freely given "when justice so requires," Fed. R. Civ. P. 15(a)(2), "[l]eave need not be granted where the amendment of the complaint would cause the opposing party undue prejudice ... or creates undue delay." Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). The Court's discretion to deny leave to amend a complaint is "especially broad" where the plaintiff already has had one or more opportunities to amend her complaint." Id. at 1161. The Court's dismissal is with prejudice for three reasons. First, this case has been pending for over two years, and further amendment risks delaying the timely resolution of this action. Second, discovery in this case recently closed. (See generally Order Extending Case Management Deadlines, ECF No. 338) (setting an October 6, 2023, deadline for discovery and a November 6, 2023, for dispositive motions). The Court agrees with the reasoning of the United States Court of Appeals which have found that allowing amendment after the close of discovery unduly prejudices defendants. See Hayes v. New England Millwork Distributors, Inc., 602 F.2d 15 (1st Cir. 1979); Campbell v. Emory Clinic, 166 F.3d 1157 (11th Cir. 1999); MacDraw, Inc. v. CIT Group Equip. Financing, Inc., 157 F.3d 956 (2d Cir. 1998); Ferguson v. Roberts, 11 F.3d 696 (7th Cir. 1993); Averbach v. Rival Mfg. Co., 879 F.2d 1196 (3rd Cir. 1989). Finally, the Court already gave Plaintiff leave to amend her complaint. The Court is not persuaded that further leave to amend is warranted and finds that allowing amendment at this late stage in the litigation would prejudice the Defendants.
2. Design Defect & Manufacturing Defect
Defendant argues Plaintiff's Second Amended Complaint fails to allege a design and manufacturing defect claim because it only contains general allegations against all Defendants without specific allegations directed at Defendant and its products. (MTD 7:16-8:25). The Nevada Supreme Court has extended an action for strict liability in tort to all products. See Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135, 138 (1970). A strict products liability action requires a plaintiff to establish: (1) defendant placed a defective product on the market; (2) the defect caused plaintiff's injury; and (3) the defect existed when the product left the hands of defendant. See Allison v. Merck & Co., 110 Nev. 762, 878 P.2d 948, 952 (1994). A product is defective when it is "dangerous because [it] fail[s] to perform in the manner reasonably expected in light of [its] nature and intended function." Id.; see also Phillips v. C.R. Bard, Inc., No. 3:12-cv-00344, 2014 WL 7177256, at *8 (D. Nev. Dec. 16, 2014) ("[T]he Allison opinion makes clear that the Nevada Supreme Court does not particularly care whether [a defect] is characterized as a manufacturing defect or a design defect."). The defect must also be "unreasonably dangerous." See Lewis v. Sea Ray Boats, Inc., 119 Nev. 100, 65 P.3d 245, 249 (2003).
For the reasons stated in the Court's analysis of Plaintiff's negligence and gross negligence claims, she has adequately alleged causation at this stage.
At bottom, Plaintiff's claim can be reduced to three allegations. First, Defendant "design[ed], manufactur[ed], distribut[ed], and market[ed] and/or s[old]" products which were unreasonably dangerous because they contained benzene. (SAC ¶ 98). Second, Defendant's products were defectively designed because they "caused concurrent exposure to benzene, a carcinogen and bone marrow toxin" that both created and increased the risk of fatal blood disease and cancer. (Id. ¶ 100-01). Finally, Defendant included benzene in its products despite being aware of the "extreme degree of risk associated with exposure to benzene." (Id. ¶ 102).
While lacking in detail, courts have found the same or similar allegations in benzene exposure cases were sufficient to allege a strict product liability claim. See Frase v. Ashland Chem. Co. Division of Ashland, Inc., No. 19-cv-273, 2020 WL 1974190, at *6 (W.D. Wis. Apr. 24, 2020) (finding the plaintiff's strict product liability claim was sufficiently pled where the complaint only alleged the "'[d]efendants supplied products with marketing, design, and/or manufacturing defects' and (2) '[t]he subject products were defective in their design, manufacture, and/or warnings that accompanied them'") (citation omitted); Moore, 2011 WL 5869597, at *6 (finding the plaintiff plausibly alleged her claims, which included strict liability, where she asserted the decedent "used benzene-containing products made by [defendants], that benzene is known to cause myeloma, that defendants knew or should have known of the dangers of benzene, and that [the decedent] developed myeloma as a result of exposure to benzene-containing products"); Martin, 2013 WL 12063924, at *2 (determining the plaintiff's sufficiently alleged a strict product liability claim where they alleged the defendant "sold to Lowe's contained several known carcinogenic chemicals, and [the decedent's] exposure to these chemicals caused him to contract leukemia"); Singleton, 835 F. Supp. 2d at 148 (same); Sorvillo, 2014 WL 3611147, at *2 (same). Accordingly, while Plaintiff's allegations are perfunctory, they are sufficient to sustain her design and manufacturing defect claims.
C. Breach of Express & Implied Warranties
In the Court's previous Order, it rejected Defendant's argument that Plaintiff's warranty claims should be dismissed as time-barred because the "possibility remain[ed] based on the timeline alleged by Plaintiff that [her] claims [were] not time-barred." (Order 11:19-21). Defendant again raises this argument, contending that dismissal is appropriate because Plaintiff, despite having the benefit of discovery, fails to allege "complete and detailed allegations" of Tyler Underwood's "timeline and circumstances of exposure" such that it can be determined whether Plaintiff's claims are time-barred. Defendant's argument is well-taken, but under the standards quoted above, the Court must look only at the face of the pleading, and read the facts contained in the pleading in the light most favorable to Plaintiff. Hal Roach Studios, Inc., 896 F.2d at 1555 n. 19. And considering the allegations only in Plaintiff's Second Amended Complaint, the Court is unable to conclusively determine whether Plaintiff's warranty claims are time-barred. Therefore, the Court declines to dismiss Plaintiff's warranty claims on this basis.
To state a breach of warranty claim under Nevada law, a plaintiff must
establish three elements: (1) a warranty existed; (2) the defendant breached the warranty; and (3) the defendant's breach was the proximate cause of the plaintiff's damages. Nevada Contract Servs., Inc. v. Squirrel Cos. Inc., 119 Nev. 157, 68 P.3d 896, 899 (2003). The Court first considers Plaintiff's express warranty claim.
1. Express Warranty
Defendant argues that Plaintiff's express warranty claim fails because the Second Amended Complaint fails to articulate specific facts or allegations that Defendant made any express or implied statements regarding its gasoline and/or diesel fuel. (MTD 9:1-10:15). Instead, Defendant posits that Plaintiff only included allegations of express or implied statements made by 7-Eleven, which cannot be imputed to it. (Reply 4:14-5:10).
"Express warranties may be created by an affirmation of fact that relates to the goods or a description of the goods, where the information is made part of the basis of the bargain." Radcliff v. Amiraslanov, 128 Nev. 928, 381 P.3d 653, 653 (2012) (citing NRS § 104.2313).
Here, Plaintiff does not identify any affirmation of fact or description of goods made by Defendant. (See generally SAC). Instead, Plaintiff relies on the same theory of imputation she advanced as part of her strict product liability failure to warn claim. The Court again disagrees with this argument. Because the Court declines to adopt Plaintiff's argument, her Second Amended Complaint contains no allegation of "any affirmation or promise made by [Defendant] that occurred prior to" Tyler Underwood's purchase of its gasoline or diesel fuel that could have been a basis for the bargain. R & O Const. Co. v. Rox Pro Intern. Group, Ltd., No. 2:09-cv-01749, 2011 WL 6400258, at *3 (D. Nev. Dec. 20, 2011); see Flores v. Merck & Co., Inc., No. 3:21-cv-00166, 2022 WL 798374, at *6 (D. Nev. Mar. 16, 2022) ("Flores fails to substantiate how Merck's representations became part of the basis of the bargain—an element of breach of express warranty claims."); Greystone Nevada, LLC v. Anthem Highlands Cmty. Ass'n, No. 2:11-cv-01424, 2012 WL 2782603, at *6 (D. Nev. July 9, 2012) ("The claim of breach is possible but not plausible unless and until Defendants allege the precise representation so the Court determine whether it was a statement of fact or opinion."). Plaintiff has already been given leave to amend, and allowing amendment at this stage in the litigation would prejudice Defendants. Accordingly, Plaintiff's claim for breach of express warranty is DISMISSED with prejudice.
2. Implied Warranty of Merchantability
The Court now considers Plaintiff's implied warranty claim. In the Court's previous Order, it explained that
while it assumed "Tyler Underwood was using Defendant's product as intended, the issue is ... that Plaintiff has not alleged the products manifested a defect which rendered them unfit for the ordinary purpose they are used." (Order 13:14-18) (citing cases). Plaintiff now advances a new argument, specifically that even if Defendant's products performed as intended, they nevertheless violate the implied warranty of merchantability because they possess a dangerous condition which renders them unsafe. (Resp. 12:13-14:5).
Nevada law recognizes two types of implied warranties: (1) implied warranty of merchantability, and (2) implied warranty for fitness for a particular purpose. Forest v. E.I. DuPont de Nemours & Co., 791 F. Supp. 1460, 1469 (D. Nev. 1992) (citing NRS §§ 104.2314-2315). Under the implied warranty of merchantability claim, for goods to be merchantable, they must be "fit for the ordinary purpose for which the goods are used." NRS § 104.2314. The implied warranty of merchantability is breached "when the goods manifest a defect which renders them unfit for the ordinary purpose for which they are used." Holmes v. Merck & Co., No. 2:04-cv-00608, 2008 WL 11348410, at *3 (D. Nev. June 16, 2008) (citation omitted).
Plaintiff's Second Amended Complaint does not assert a claim for breach of the implied warranty for fitness for a particular purpose. (See generally SAC). Even if it had, for the reasons set forth in the Court's previous Order, the Second Amended Complaint fails to allege a claim for the implied warranty for fitness for a particular because Tyler Underwood utilized Defendant's products for an ordinary, rather than particular purpose. (Order 12:24-13:8).
Courts and legal treatises have recognized that the implied warranty of merchantability embraces a minimum level of safety. See Moncibaiz v. Pfizer Inc., 532 F. Supp. 3d 452, 462 (S.D. Tex. 2021) ("This is so because a product 'cannot be unfit for ordinary use but unreasonably dangerous, nor can it be unreasonably dangerous but fit for ordinary use; it must be both or neither.") (citing Smith v. Chrysler Grp., LLC, 909 F.3d 744, 752 (5th Cir. 2018)); Falk v. Nissan North Am., Inc., No. 17-cv-04871, 2018 WL 2234303, at *3 (N.D. Cal. May 16, 2018) (writing that the "minimum level of quality" included in the implied warranty of merchantability also "includes a basic level of safety") (citation omitted); Gonzalez v. Pepsico, Inc., 489 F. Supp. 2d 1233, 1247 (D. Kan. 2007) (finding the plaintiffs sufficiently alleged an implied warranty of merchantability where they alleged the defendants' beverage products contained benzene, "which is a cognizable defect"); see also 3 Anderson U.C.C. § 2-314:77, Content of implied warranty of merchantability — Safety (3d. ed.) ("The element of 'quality' within the implied warranty of 'merchantability' embraces the element of 'safety' for use. Thus, if a product is deemed unsafe due to some defect at the time of sale, there will be a breach of the implied warranty of merchantability."); 26 Am. Jur. 2d 1, Sales: Implied Warranty of Merchantability § 6 (2023) ("Goods are not fit for ordinary purposes when they break or need frequent or extensive repairs early on when used in an ordinary manner; nor, obviously, are they fit for ordinary purposes when they are completely useless and therefore unfit for any purpose."). Although freedom from defects is not part of the definition of merchantability — that would render the claim for breach of implied warranty a nullity, indistinguishable from a product defect claim—the Court is amenable to Plaintiff's argument that a defect which renders a product inherently unsafe in its ordinary use would violate the implied warranty of merchantability. And here, Plaintiff sufficiently alleged that the
implied warranty of merchantability was breached because Defendant's products unnecessarily exposed the user to carcinogens capable of causing cancer. (SAC ¶ 113). Accordingly, the Court declines to dismiss Plaintiff's implied warranty of merchantability claim.
In sum, Defendant's Motion to Dismiss is GRANTED in part and DENIED in part. Plaintiff's strict product liability failure to warn claim and express warranty claim are dismissed with prejudice for the reasons set forth above. The Court declines to dismiss Plaintiff's remaining claims.
IV. CONCLUSION
IT IS HEREBY ORDERED that the Defendant's Motion for Dismiss, (ECF No. 312) is GRANTED in part and DENIED in part.