Brake Manufacturer Obtains Dismissal on Alternative Theories of Liability in Lieu of Product Identification & Proximate Cause Mississippi Southern District Court, November 1, 2018
MISSISSIPPI – The plaintiffs William Dickens and Karla Dickens (plaintiffs) allege that the plaintiff William Dickens’s (Mr. Dickens) mesothelioma was caused by exposure to asbestos within products he used while employed as a mechanic, and within talcum powder products he used. Ford Motor Company (Ford) was named as one of the defendants since it, “designed its braking systems for asbestos-containing brake linings such that no other material could be utilized as brake linings in those systems.” Ford moved to dismiss, under Rule 12(b)(6): (i) the cause of action imputing to Ford liability under the doctrines of enterprise liability, market-share liability, concert of action, and alternative liability; and (ii) the cause of action asserting fraud-based claims, including concealment, conspiracy, aiding, and abetting. The Southern District of Mississippi granted Ford’s motion.
First, the court agreed with Ford that none of the doctrines on which the plaintiffs partially based Ford’s liability – enterprise liability, market-share liability, concert of action, or alternative liability – have been recognized in Mississippi as relieving a plaintiff of his or her burden to prove product identification and proximate cause. Rather, in Mississippi asbestos cases, the “frequency, regularity, and proximity test is the proper standard in determining exposure and proximate cause,” in addition to specific product identification. Accordingly, the Southern District dismissed the cause of action asserting the aforementioned doctrines.
The court also dismissed the cause of action asserting certain fraud-based claims, alleging concealment, conspiracy, and general fraud, on the basis that the plaintiffs failed to plead them with particularity, under both the Mississippi and Federal Rules of Civil Procedure. Specifically, the allegations only referred to undefined “defendants,” “conspirators,” or non-parties as having engaged in a fraudulent conspiracy to withhold information concerning the dangers of asbestos. This cause of action did not name Ford as a specific participant in these fraud-based activities, nor did it include specifics with regard to dates, times, parties, locations, or content of allegedly fraudulent communications. Accordingly, the court dismissed this cause of action on the basis that it did not meet the specificity requirements of the Rules of Civil Procedure.
The court further concluded that the claim alleging Ford “aided and abetted” a civil conspiracy claim, also asserted within the fraud-based cause of action, could also be dismissed for failure to state a claim. The court explained that, although, contrary to Ford’s argument that Mississippi does not recognize any “aiding and abetting claim,” Mississippi does, in fact, recognize such a claim under the Restatement (Second) of Torts § 876(b). However, a plaintiff was still required to prove defendant had knowledge of the conduct constituting the civil conspiracy and substantial assistance or encouragement to the conspiring party in furtherance of the conspiracy. In this case, the court found that the plaintiffs’ allegation only asserted that Ford’s action was consistent with an alleged conspiracy to use asbestos despise health dangers, but fell short of asserting that Ford knew about conduct constituting a conspiracy regarding asbestos, or that it took action to encourage others to carry out a conspiracy.