Neumann v. Borg-Warner Morse Tec LLC

168 F.Supp.3d 1116

Doris Jane Neumann, Plaintiff,

v.Borg-Warner Morse Tec LLC, et al., Defendants.

No. 15 C 10507

United States District Court, N.D. Illinois, Eastern Division.

Signed March 10, 2016

Dana C. Simon, Simon Greenstone Panatier Bartlett, PC, Dallas, TX, Robert Neil Wadington, Robert N. Wadington & Associates, Chicago, IL, for Plaintiff.

Jennifer Jerit Johnson, Si-Yong Yi, Tressler LLP, Bradley Charles Nahrstadt, Derek John Crimando, Frank Tung, Kelly M. Cronin, Lipe Lyons Murphy Nahrstadt & Pontikis, Ltd., Nathan Antony Quaglia, Swanson, Martin & Bell, LLP, Tobin J. Taylor, Stephanie Anali Garces, Heyl Royster Voelker & Allen, P.C., Kaitlyn Noel Chenevert, Chicago, IL, John J. Kurowski, Kurwoski Shultz, LLC, Kevin C. McGinley, Thompson Coburn LLP, Belleville, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Marvin E. Aspen, United States District Judge

Plaintiff Doris Jane Neumann filed this negligence action in Illinois state court against several manufacturers or distributors of asbestos-laden products. In this “take-home” or “secondary” asbestos lawsuit, Neumann alleges that she contracted malignant mesothelioma through her exposure to asbestos fibers unwittingly brought home by her son, who utilized Defendants' products at work.

Presently before us is a motion to dismiss filed by defendant MW Custom Papers, LLC, as successor-in-interest to the Mead Corporation (“MW Custom Papers”). (Dkt. No. 42.) MW Custom Papers contends that Neumann's negligence claim fails as a matter of law because it did not owe her any duty. For the reasons discussed below, we grant the motion.

BACKGROUND

According to the complaint, Neumann's son, Greg, worked as a gas station attendant and mechanic from approximately 1970 through 1974. During that time, Greg worked with asbestos-containing products, including friction paper supplied by MW Custom Papers. (Compl. ¶ 2.) In handling the friction paper, and other materials produced by the various Defendants, Greg was exposed to high levels of asbestos fibers. He then carried these fibers home on his clothing, where they frequently were ingested and inhaled by his mother. (Id. ) Neumann alleges that she was exposed to asbestos through contact with her son and through laundering his clothes and, moreover, that this exposure directly caused her to develop mesothelioma, a form of cancer caused by asbestos. (Id. ¶¶ 2–4, 13–15.) Neumann was diagnosed on September 17, 2015 and alleges that she has become disabled, suffered great pain, and incurred significant medical expenses. (Id. ¶¶ 5–6, 14–15.)

In setting out her negligence claim, Neumann alleges that each Defendant, including MW Custom Papers, “had actual knowledge or, in the exercise of reasonable care, should have known of the dangerous propensities of asbestos-containing products... and that exposure to the asbestos from those products... could cause injury, disease and death.” (Id. ¶ 8.) Neumann asserts that it was reasonably foreseeable to Defendants that people working with their asbestos-containing products “would be ignorant of their dangers...and would expose others, all of whom would suffer serious and fatal diseases.” (Id. ¶ 9.) She expressly alleges that Defendants had a duty to exercise reasonable care “so as to avoid disease and injury to those working with or near their products and their family members who they might, in turn, expose through their dusty work clothes.” (Id. ¶ 10.) She claims that Defendants failed to investigate the dangers of their asbestos-containing products to “users and those in proximity to users,” failed to warn Neumann or her son of the dangers to which they were exposed, and failed to instruct them as well as “others in the proper handling of asbestos products.” (Id. ¶ 11.) Neumann seeks damages as compensation for her pain, anguish, past and future impairments, and expenses, and as punishment of Defendants. (Id. ¶ 15.)

Defendants removed this action from state court on November 20, 2015. MW Custom Papers subsequently filed a motion to dismiss with prejudice under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 43.) MW Custom Papers contends that Neumann failed to plead sufficient facts to state her claim and, moreover, that it cannot be held liable for negligence because it owed her no duty.

STANDARD OF REVIEW

A Rule 12(b)(6) motion is meant to “test the sufficiency of the complaint, not to decide the merits of the case.” Gibson v. City of Chi. , 910 F.2d 1510, 1520 (7th Cir.1990). In evaluating a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Thompson v. Ill. Dep't of Prof'l Regulation , 300 F.3d 750, 753 (7th Cir.2002). A court may grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks enough facts “to state a claim [for] relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007) ); Killingsworth v. HSBC Bank Nev., N.A. , 507 F.3d 614, 618–19 (7th Cir.2007).

“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.”

Iqbal , 556 U.S. at 678, 129 S.Ct. at 1949. Although a facially plausible complaint need not contain “detailed factual allegations,” it must allege facts sufficient “to raise a right to relief above the speculative level.” Twombly , 550 U.S. at 555, 127 S.Ct. at 1964–65. These requirements ensure that the defendant receives “fair notice of what the ... claim is and the grounds upon which it rests.” Id. at 555, 127 S.Ct. at 1964.

ANALYSIS

MW Custom Papers' motion raises two arguments, which we address in turn. We begin with the argument that Neumann's complaint lacks specific facts and will then focus on the primary legal argument concerning recognition of the alleged duty of care.

A. Sufficiency of the Facts Plead as to Foreseeability

In its motion, MW Custom Papers first contends that Neumann's complaint lacks sufficient facts, particularly as to foreseeability. (Mem. at 3–4, 6–7.) We review both the basic elements of Neumann's claim and her allegations.

1. Principles of Negligence and Duty in Illinois

To state a claim for negligence in Illinois, a plaintiff must allege “the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach.” Simpkins v. CSX Transp., Inc. , 358 Ill.Dec. 613, 617, 965 N.E.2d 1092, 1096 (Ill.2012) ; Adams v. N. Ill. Gas Co. , 211 Ill.2d 32, 43, 284 Ill.Dec. 302, 809 N.E.2d 1248, 1257 (2004). As the Illinois Supreme Court has repeatedly noted, “[t]he concept of duty in negligence cases is involved, complex, and nebulous.” Simpkins , 358 Ill.Dec. at 617, 965 N.E.2d at 1096 ; Marshall v. Burger King Corp. , 222 Ill.2d 422, 435, 305 Ill.Dec. 897, 856 N.E.2d 1048, 1056–57 (2006). The existence of a duty in any given “case is a question of law for the court to decide” and “involves considerations of public policy.” Simpkins , 358 Ill.Dec. at 617–18, 965 N.E.2d at 1096–97 ; see Marshall , 222 Ill.2d at 430, 305 Ill.Dec. 897, 856 N.E.2d at 1053–54.

Under Illinois law,

every person owes a duty of ordinary care to all others to guard against injuries which naturally flow as a reasonably probable and foreseeable consequence of an act, and such a duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons.

Simpkins , 358 Ill.Dec. at 618, 965 N.E.2d at 1097 (quoting Widlowski v. Durkee Foods , 138 Ill.2d 369, 373, 150 Ill.Dec. 164, 562 N.E.2d 967, 968 (1990) ). In other words, “if a course of action creates a foreseeable risk of injury, the individual engaged in that course of action has a duty to protect others.” Simpkins , 358 Ill.Dec. at 618, 965 N.E.2d at 1097. This duty cannot, and does not, run “to the world at large,” but is limited by four considerations. Simpkins , 358 Ill.Dec. at 618, 965 N.E.2d at 1097. In determining whether a duty arises, we thus assess: “(1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant.” Id. ; Krywin v. Chi. Transit Auth. , 238 Ill.2d 215, 226, 345 Ill.Dec. 1, 938 N.E.2d 440, 447 (2010) ; Marshall , 222 Ill.2d at 436–37, 305 Ill.Dec. 897, 856 N.E.2d at 1057.

Although the first factor, foreseeability, is essential to finding the existence of a duty, the weight given to each of the factors depends on the circumstances. Simpkins , 358 Ill.Dec. at 618–19, 965 N.E.2d at 1097–98 ; Widlowski , 138 Ill.2d at 374–75, 150 Ill.Dec. 164, 562 N.E.2d at 969. Additionally, we evaluate the foreseeability of the risk of harm not in hindsight but from the perspective “at the time defendant engaged in the allegedly negligent action.” Simpkins , 358 Ill.Dec. at 619, 965 N.E.2d at 1098 ; see Widlowski , 138 Ill.2d at 374–75, 150 Ill.Dec. 164, 562 N.E.2d at 969.

2. Consideration of Neumann's Complaint

With these principles in mind, we return to the motion. MW Custom Papers argues that the complaint includes only conclusory allegations, inadequate to plead the existence of any duty. In doing so, MW Custom Papers compares Neumann's allegations to those found deficient by the Illinois Supreme Court in Simpkins v. CSX Transportation, Inc. Before proceeding with our analysis, we briefly review the Simpkins case and procedural history.

The facts alleged in Simpkins were similar to those present here. The plaintiff, Annette Simpkins, alleged that her husband, Ronald, was exposed to raw asbestos and asbestos-containing materials when he worked for defendant CSX Transportation from 1958 to 1964. 358 Ill.Dec. at 615–16, 965 N.E.2d at 1094–95. Annette...