Rothchild v. Crane Co. (S.D. Fla., Aug. 1, 2014, as to Lorillard Tobacco)

Our plain-English summary of Rothchild v. Crane Co. (U.S. District Court, Southern District of Florida, August 1, 2014).

Herbert Rothchild and his wife Audrey sued Crane Co., Foster Wheeler Energy Corporation, Lorillard Tobacco Company, Owens-Illinois and Union Carbide in federal court in southern Florida. The amended complaint alleges that Mr. Rothchild contracted mesothelioma. The opinion does not describe his work or where he was exposed to asbestos. Lorillard asked the court to strike two parts of the complaint. One was an allegation that defendants misrepresented asbestos products as safe. The other was the phrase "gross negligence . . . and/or willful omissions." Lorillard argued these allegations sounded in fraud, were irrelevant and inflammatory, and amounted to an improper bid for punitive damages. The plaintiffs responded that the language supported their negligence claim and that they were not seeking punitive damages. The court denied the motion. It said motions to strike are disfavored and are usually denied unless the allegations have no possible relation to the controversy and may prejudice a party. With the plaintiffs' clarification, it found the language not inappropriate. It added that the jury charge would set out the law to apply.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Southern District of Florida
• Decided: August 1, 2014
• Docket: Case No. 14-80271-CIV-MARRA
• Stage: Motion to dismiss
• State: Florida

Outcome. The court denied Lorillard Tobacco Company's motion to strike two allegations from the plaintiffs' amended complaint, so the Rothchilds' allegations stayed in the complaint.

What the court held. A motion to strike under Rule 12(f) is a disfavored, drastic remedy that is usually denied unless the allegations have no possible relation to the controversy and may prejudice a party.

Issues decided: Trial Procedure and Discovery, Punitive Damages.

The people and their exposure

• Herbert Rothchild: mesothelioma

The defendants

• Lorillard Tobacco Company (manufacturer)
• Crane Co.
• Foster Wheeler Energy Corporation
• Owens-Illinois, Inc. · its asbestos trust
• Union Carbide Corporation

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Rothchild v. Crane Co. (August 1, 2014). The court granted Union Carbide's motion to dismiss the amended complaint as to Union Carbide only, without prejudice, and gave the Rothchilds 30 days to amend with more specific allegations.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

HERBERT ROTHCHILD and AUDREY ROTHCHILD, his wife, Plaintiffs,

v.

CRANE CO., FOSTER WHEELER ENERGY CORPORATION; LORILLARD TOBACCO COMPANY;

OWENS-ILLINOIS, INC., f/k/a OWENS BOTTLE MACHINE CORP., f/k/a OWENS BOTTLE CO., f/k/a

OWENS-ILLINOIS GLASS CO.; UNION CARBIDE CORPORATION, Defendants.

Case No. 14-80271-CIV-MARRA.

August 1, 2014.

United States District Court, S.D. Florida.

OPINION AND ORDER

KENNETH A. MARRA, District Judge.

This cause is before the Court upon Lorillard Tobacco Company's Motion to Strike Certain Allegations From Plaintiff's First Amended Complaint [DE 25]. The motion is ripe for this Court's review. The Court has reviewed all submissions relating to this motion and is otherwise duly advised in the premises.

Lorillard seeks to have the Court strike two portions of the Amended Complaint. Paragraph 20(g) states that Each Defendant who was in the business of manufacturing, selling and/or distributing products during the times pertinent to this suit, was negligent and/or failed to exercise reasonable care in one, some and/or all of the following respects, the same being the proximate cause of Plaintiff's injuries and eventual death: g. In affirmatively misrepresenting to Plaintiff and other members of the public in advertising, by labels or otherwise, that the asbestos and/or asbestos-containing/contaminated products milled, mined, manufactured, sold and/or distributed were safe in their ordinary and foreseeable use, which material misrepresentations induced Plaintiff to unknowingly expose himself to the hazards of developing injuries including, but not limited to, mesothelioma, asbestosis, lung cancer and/or other forms of cancer.

[DE 4 at 5, 7].

Lorillard argues that the conclusory allegations of affirmative misrepresentation contained in this paragraph sound in fraud and are irrelevant to Plaintiff's claims. [DE 25 at 2]. It further argues that these allegations are scandalous matter meant to inflame the reader and prejudice Lorillard.

Lorillard makes similar arguments relative to the allegations in Paragraph 39 of the Amended Complaint. This paragraph states:

As a direct and proximate result of the negligence, carelessness, gross negligence, strict liability, and/or willful omissions of the Defendants as described herein, Plaintiff was caused to contract mesothelioma herein causing Plaintiff pain, suffering and mental anguish.

[DE 4 at 12].

Lorillard objects to the phrase "gross negligence. . . and/or willful omissions" as immaterial and irrelevant and an improper attempt to seek punitive damages. [DE 25 at 3].

Lorillard seeks to have the language in these two paragraphs stricken. In the alternative, it seeks an order clarifying that these allegations shall be construed by the Court solely as allegations of fact. [Id. at 4].

In response, Plaintiff states that the language in Paragraph 20 is a factual allegation in support of Plaintiff's negligence cause of action. Plaintiff argues that the language in Paragraph 39 is relevant to Plaintiff's negligence claim and confirms

that Plaintiff is not seeking punitive damages. [DE 29 at 3]. Plaintiff has, therefore, essentially agreed to Lorillard's alternative request for relief.

Having reviewed the Amended Complaint, and the arguments of the Parties, the language objected to does not meet the standard necessary to warrant striking the language from the Amended Complaint. Rule 12(f) permits a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." A motion to strike, however, is disfavored. As noted in Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257-CIV-RNS, 2012 WL 5410609, at [*2] (S.D. Fla. Nov. 6, 2012),

"courts consider striking a pleading to be a `drastic remedy to be resorted to only when required for the purposes of justice.'"Exhibit Icons, LLC v. XP Cos., 609 F. Supp. 2d 1282, 1300 (S.D. Fla. 2009) (Marra, J.). Motions to strike are generally viewed with disfavor, see Pandora Jewelers 1995, Inc. v. Pandora Jewelry, LLC, 2010 WL 5393265, at [*1] (S.D. Fla. Dec. 21, 2010) (Cooke, J.), in part because they "waste time by requiring judges to engage in busy work and judicial editing without addressing the merits of a party's claim,"see U.S. Bank Nat'l Ass'n v. Alliant Energy Res., Inc., 2009 WL 1850813, at [*3] (W.D. Wis. June 26, 2009) (Crabb, J.). "Motions to strike," therefore "will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties."See Seibel v. Society Lease, Inc., 969 F.Supp. 713, 715 (M.D.Fla.1997) (Kovachevich, J.).

With the clarification provided by Plaintiffs in their responding papers, the Court does not think that the language in the Amended Complaint is inappropriate. Furthermore, should this case ultimately go before a jury, the Court's charge will set forth the law to be applied by the jury.

Accordingly, it is hereby

ORDERED AND ADJUDGED that Lorillard Tobacco Company's Motion to Strike Certain Allegations From Plaintiff's First Amended Complaint [DE 25] is DENIED.

DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 1st day of August, 2014.

Sources

• The opinion on Google Scholar
• Florida asbestos laws
• Florida asbestos exposure sites