Viera v. BASF Catalysts LLC (2016)

Our plain-English summary of Viera v. BASF Catalysts LLC (U.S. District Court, Middle District of Florida, April 8, 2016).

Carmen Viera sued for herself and as representative of her late husband Pedro Rosado-Rivera's estate. She alleged he developed mesothelioma and died on May 23, 2014, after using auto-body filler containing asbestos-laced talc. She alleged he used it for more than four decades at auto shops in New York, Puerto Rico and Florida. The defendants were BASF Catalysts LLC, which allegedly mined and sold the talc, Whittaker, Clark & Daniels, which allegedly supplied talc, and Superior Materials, which allegedly distributed the filler. The case began in New York and was transferred to the Middle District of Florida. BASF, joined by the other defendants, moved to dismiss two of six claims: intentional and negligent misrepresentation, and concerted acts. The court granted the motion. Viera did not respond to the argument on concerted acts, so the court treated that claim as abandoned. The misrepresentation claim did not meet the federal rule requiring fraud to be pleaded with particularity, because it did not explain where or how the statements were made, when they were made, or how Rosado-Rivera relied on them. Both claims were dismissed without prejudice, and Viera could amend within 14 days.

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, Middle District of Florida
• Decided: April 8, 2016
• Docket: Case No. 5:16-cv-1-Oc-30PRL
• Stage: Motion to dismiss
• State: Florida

Outcome. The court granted BASF's partial motion to dismiss (joined by Superior and Whittaker), dismissing the plaintiff's misrepresentation and concerted-acts claims without prejudice and allowing her 14 days to file a second amended complaint.

What the court held. Intentional and negligent misrepresentation claims sound in fraud and must meet Rule 9(b)'s particularity requirement, including the who, what, when, where and how; a plaintiff who fails to respond to an argument for dismissing a claim abandons it.

The people and their exposure

• Pedro Rosado-Rivera: mesothelioma; died

Who	Work	Where	When	Products
Pedro Rosado-Rivera	auto-body worker using body filler (auto mechanics and brake work)	auto shops	1959-1968	talc and vermiculite, auto-body filler (Superior; talc from BASF and Whittaker)

The defendants

• BASF Catalysts LLC (manufacturer)
• Whittaker, Clark & Daniels, Inc. (supplier)
• Superior Materials, Inc. (supplier)

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.

CARMEN VIERA, individually and as Personal Representative of the Estate of PEDRO ROSADO-

RIVERA, Plaintiff,

v.

BASF CATALYSTS LLC, SUPERIOR MATERIALS, INC., and WHITTAKER, CLARK & DANIELS, INC.,

Defendants.

Case No. 5:16-cv-1-Oc-30PRL.

April 8, 2016.

United States District Court, M.D. Florida, Ocala Division.

ORDER

JAMES S. MOODY, Jr., District Judge.

THIS CAUSE comes before the Court upon Defendant BASF Catalysts LLC's ("BASF") Partial Motion to Dismiss (Docs. 18, 19),[1] Plaintiff's response in opposition (Doc. 23), and BASF's reply (Doc. 27). The Court, having reviewed the motion, response, reply, and relevant pleadings, and being otherwise fully advised in the premises, concludes that BASF's partial motion to dismiss should be granted.

BACKGROUND

Originally, Plaintiff initiated this action in the Southern District of New York in her individual capacity and as representative for the estate of her deceased husband, Pedro Rosado-Rivera. (Doc. 1). Plaintiff alleges that Rosado-Rivera developed mesothelioma due to exposure to an asbestos-containing auto-body filler distributed by Superior and containing asbestos-laced talc manufactured and distributed by BASF and Whittaker. Plaintiff contends that Rosado-Rivera used the auto-body filler for more than four decades while working at auto shops in New York, Puerto Rico, and Florida. She alleges, specifically, that Rosado-Rivera used the filler in New York between 1959 and 1968; in Puerto Rico between 1968 and 1992; and in Florida thereafter. Rosado-Rivera developed mesothelioma in April 2014 and died on May 23, 2014.

As a result of her husband's death, Plaintiff filed an amended complaint asserting six claims against Defendants under New York law,[2] including (1) negligence, (2) intentional and negligent misrepresentation, (3) strict liability, (4) concerted acts, (5) wrongful death, and (6) loss of consortium. (Doc. 9). BASF, joined by Superior and Whittaker, moved to transfer the case to the Middle District of Florida on September 1, 2015, and the Southern District of New York granted the motion. (Doc. 45). BASF now moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff's claims for intentional and negligent misrepresentation and concerted acts, arguing that Plaintiff has not established a prima facie case for these claims. (Docs. 18, 19).

DISCUSSION

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief can be granted. In considering a motion to dismiss under Rule 12(b)(6), a court must accept the factual allegations of the complaint as true and evaluate all inferences derived from those facts in the light most favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Conclusory allegations, unwarranted factual deductions, or legal conclusions masquerading as facts, however, are not entitled to the assumption of truth. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).

As to Plaintiff's claim for concerted acts (Count IV), Plaintiff did not respond to BASF's contention that the claim is insufficiently pled. (Doc. 23). Rather, Plaintiff states, "if the court finds BASF carried the burden on its motion to dismiss. . ., Plaintiff requests that the dismissal of that cause as to BASF be entered without prejudice." (Id. at 1 n.1). By failing to

address BASF's arguments, Plaintiff appears to abandon her claim for concerted acts. See Pelfresne v. Village of Williams Bay, 917 F. 2d 1017, 1023 (7th Cir. 1990) ("A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority or in the face of contrary authority, forfeits the point. [The court] will not do his research for him." (citations omitted)). Because Plaintiff essentially concedes BASF's arguments as to her claim for concerted acts, Plaintiff's claim should be dismissed. However, the dismissal is without prejudice; Plaintiff may amend the claim.

As to Plaintiff's claim for intentional or negligent representation (Count II), BASF argues that Plaintiff has not identified any factual details of the alleged misrepresentations, including who made them, when and how they were made, and how Rosado-Rivera came to rely upon them. (Doc. 19 at 5). Where a plaintiff's claims sound in fraud, as does Plaintiff's claim for intentional or negligent misrepresentation,[3] a plaintiff must also satisfy the heightened pleading standard of Federal Rule of Civil Procedure 9(b), which requires that "a party must state with particularity the circumstances constituting fraud." See also Abraham v. Am. Home Mortg. Servicing, Inc., 947 F. Supp. 2d 222, 234 (E.D.N.Y. 2013) (discussing Rule 9(b)'s

requirements).

"To comport with Rule 9(b), a plaintiff must not only give the who, what, and when with regard to an alleged false or misleading statement, but also must `give particulars as to the respect in which plaintiff contends the statements were fraudulent.'" Ressler v. Liz Claiborne, Inc., 75 F. Supp. 2d 43, 52 (E.D.N.Y. 1998) (quoting Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989)). The Second Circuit has explained:

The purpose of Rule 9(b) is threefold—it is designed to provide a defendant with fair notice of a plaintiff's

claim, to safeguard a defendant's reputation from improvident charges of wrongdoing, and to protect a

defendant against the institution of a strike suit. Thus, although Rule 9(b) permits knowledge to be averred

generally, we have repeatedly required plaintiffs to plead the factual basis which gives rise to a strong

inference of fraudulent intent. Essentially, while Rule 9(b) permits scienter to be demonstrated by inference,

this must not be mistaken for license to base claims of fraud on speculation and conclusory allegations. An

ample factual basis must be supplied to support the charges.

O'Brien v. Nat'l Prop. Analysts Partners, 936 F.2d 674, 676 (2d Cir. 1991) (citations omitted).

Here, Plaintiff makes the following factual allegations as to each defendant (Doc. 9):[4]

BASF owned or operated a talc mine in Johnson, Vermont, from 1967 until 1983.[5] (Doc. 9 at ¶ 17). The talc ore from that mine contained asbestos or asbestiform fibers and was processed or manufactured into talc products, including auto-body filler. (Id. at ¶¶ 19, 20, 21). In the 1970s and 1980s, BASF and various third parties conducted tests and assays on its talc ore and products and on the environment in which the ore was mined and determined that the talc ore and products contained asbestos or asbestiform fibers. (Id. at ¶¶ 23, 24). Even though BASF was aware of these results, BASF

represented to its customers, industry trade groups, and the federal government that its talc was asbestos free and marketed the talc as a viable asbestos substitute. (Id. at ¶ 25). BASF manufactured, supplied, distributed, and sold asbestos-containing talc, which was an ingredient in auto-body filler used by Rosado-Rivera. (Id. at ¶ 26).

From 1960 until 1990, Whittaker supplied, distributed, and sold talc containing asbestos or asbestiform fibers that was used as an ingredient in auto-body fillers. (Id. at ¶¶ 27, 28, 29). Whittaker conducted tests and assays on its talc products and the results revealed that the talc products contained asbestos or asbestiform fibers. (Id. at ¶ 33). Although Whittaker knew that its talc products contained asbestos or asbestiform fibers, it did not place a warning label regarding the hazards of asbestos on its talc products sold to customers. Whittaker manufactured, supplied, distributed, and sold asbestos-containing talc products, which were ingredients in auto-body filler used by Rosado-Rivera. (Id. at ¶ 35).

Superior was a regional distributor of the auto-body filler used by Rosado-Rivera, and the auto-body filler did not have a warning label regarding the hazards of asbestos. (Id. at ¶¶ 37, 38). Rosado-Rivera was exposed to asbestos from the auto-body filler distributed, supplied, and sold by Superior. (Id. at ¶ 39). Plaintiff does not assert that Superior was aware or should have been aware that the auto-body filler contained asbestos or asbestiform fibers.

Based on these allegations, Plaintiff has not satisfied Rule 9(b)'s particularity requirement because her allegations lack the necessary specificity. For example, as to BASF, Plaintiff alleges that BASF represented to customers, industry trade groups, and the federal government that its talc was asbestos free and a viable asbestos substitute when it was aware that its talc contained asbestos (the "what"), but Plaintiff does not explain the "where" or "how" of these misrepresentations. Unlike In re

Frito-Lay N. Am., Inc. All Natural Litig., No. 12-MD-2413 (RRM)(RLM), 2013 WL 4647512, at [*23]-24 (E.D.N.Y. Aug. 29, 2013), where the plaintiffs alleged that the misrepresentation was placed prominently on the packaging of the defendants' products, Plaintiff has not demonstrated how the misrepresentations were made or how Rosado-Rivera came to rely upon them. Cf. Hughes, 930 F. Supp. 2d at 472-76 (concluding that the plaintiff met Rule 9(b)'s particularity requirement as to claims for intentional and negligent misrepresentation). Additionally, Plaintiff generally avers that the conduct occurred in the 1970s and 1980s, over almost two decades, which is not sufficient to put BASF on notice as to the "when." The same is true as to Plaintiff's allegations against Whittaker.

As to Superior, Plaintiff has not alleged with specificity the actions constituting the misrepresentation (the "what"), how, when, or where the misrepresentation occurred, and whether Rosado-Rivera relied upon the misrepresentation.

BASF also argues that Plaintiff's claim is insufficient because she pled it generically as to all defendants and does not explain which defendant made a particular misrepresentation. (Doc. 19 at 6). This is not precisely accurate. While the allegations contained in the count for negligent or intentional misrepresentation refer to Defendants collectively (Doc. 9, ¶¶ 66-70), Plaintiff's factual allegations attempt to distinguish which acts were allegedly taken by each defendant (Id. at ¶¶ 17-39). The cases relied on by BASF are distinguishable in that they involve allegations significantly more deficient than Plaintiff's. See Ritchie v. N. Leasing Sys., Inc., 14 F. Supp. 3d 229, 235 (S.D.N.Y. 2014) (distinguishing Atuahene v. City of Hartford, 10 F. App'x 33, 34 (2d Cir. 2001)). While Plaintiff's claim is deficient in that it lacks specificity, this particular argument does not constitute an appropriate basis for dismissal of Plaintiff's claim.

Because Plaintiff's claim for intentional or negligent misrepresentation as to BASF, Whittaker, and Superior is insufficient under Rule 9(b), it should be dismissed. However, Plaintiff will be given an opportunity to amend this claim.

CONCLUSION

Accordingly, it is therefore ORDERED AND ADJUDGED that:

1. Defendant BASF Catalysts LLC's ("BASF") Partial Motion to Dismiss (Docs. 18, 19) is GRANTED.

2. Counts II and IV are DISMISSED without prejudice.

3. Within fourteen (14) days of the date of this Order, Plaintiff may file a second amended complaint.

DONE and ORDERED.

[1] Defendants Whittaker, Clark & Daniels, Inc. ("Whittaker") and Superior Materials, Inc. ("Superior") joined BASF's partial motion to dismiss. (Docs. 21, 22).

[2] BASF asserts that it is not "clear" whether New York law applies to Plaintiff's claims. (Doc. 19 at 4 n.3). Nevertheless, BASF applies New York law in its motion to dismiss and argues that the Court can analyze its motion under New York law as pled by Plaintiff without conducting a choice-of-law analysis. (Id.). As an initial matter, whether New York law applies is not pertinent in deciding the motion to dismiss, as New York and Florida law do not differ significantly with respect to a claim of intentional or negligent representation. Compare Liberty Mut. Ins. Co. v. Palace Car Servs. Corp., No. 06-cv-4881 (FB)(CLP), 2007 WL 2287902, at [*2] (E.D.N.Y. Aug. 8, 2007); Abu Dhabi Commercial Bank v. Morgan Stanley & Co. Inc., 910 F. Supp. 2d 543, 546 (S.D.N.Y. 2012); with Jovine v. Abbott Labs., Inc., 795 F. Supp. 2d 1331, 1338 (S.D. Fla. 2011); Linville v. Ginn Real Estate Co., LLC, 697 F. Supp. 2d 1302, 1307 (M.D. Fla. 2010). Additionally, given the fact intensive inquiry required to determine the applicable law, a choice-of-law determination at this stage would be premature. See Hughes v. Ester C Co., 930 F. Supp. 2d 439, 451 n.6 (E.D.N.Y. 2013). The parties should be ready, however, to address the choice-of-law issue at a later stage of the litigation.

[3] To state an intentional misrepresentation (or fraud) claim under New York law, a "plaintiff must establish that: `(1) the defendant made a material false representation; (2) the defendant intended to defraud the plaintiff thereby; (3) the plaintiff reasonably relied upon the representation; and (4) the plaintiff suffered damage as a result of such reliance.'" Liberty Mut. Ins. Co., 2007 WL 2287902, at [*2] (quoting Indep. Order of Foresters v. Donald, Lufkin & Jenrette, Inc., 157 F.3d 933, 940 (2d Cir. 1998)). Similarly, a claim of negligent misrepresentation requires a plaintiff to demonstrate "(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information." Abu Dhabi Commercial Bank, 910 F. Supp. 2d at 546.

[4] For the purposes of resolving BASF's motion to dismiss, the Court accepts the factual allegations of Plaintiff's complaint as true. See Erickson, 551 U.S. at 94.

[5] Plaintiff's claims against BASF are asserted in its capacity as a successor-in-interest to predecessor corporations: Engelhard Corporation, Engelhard Industries, Engelhard Minerals & Chemicals Corporation, Minerals & Chemicals Phillip Corporation, Eastern Magnesia Talc Company, Porocel Corporation, and Pita Realty Limited. (Doc. 9, ¶ 2). For ease of reference, these parties are collectively referred to as BASF.

Sources

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