Partial Motion to Dismiss of Talc Suppliers and Auto-Body Filler Granted Without Prejudice, Giving Plaintiff Time to Amend Claims of Concerted Acts and Intentional and Negligent Misrepresentation U.S. District Court for the Middle District of Florida, Ocala Division, April 8, 2016
This action was originally commenced by the plaintiff in the Southern District of New York and alleged that the decedent, Pedro Rosado-Rivera, was exposed to asbestos-containing auto-body filler while working in auto shops in New York (1959-1968), Puerto Rico (1968-1992) and then thereafter in Florida. The defendant BASF Catalysts LLC’s, joined by other defendants Superior Materials, Inc. and Whittaker, Clark & Daniels, Inc., motion to transfer the case to the middle district of Florida was granted. (BASF and Whittaker were talc suppliers and Superior was a regional distributor of the auto-body filler used by decedent). Subsequently, the defendants moved to dismiss the plaintiff’s claims of intentional and negligent misrepresentation and concerted acts.
The plaintiff did not respond to the defendant’s argument regarding concerted acts and the court granted the motions on that argument without prejudice for the plaintiff to amended the claim if she chose to. Regarding the claim of intentional or negligent representation, the court stated that the plaintiff must “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.”’(Internal citation omitted). The court then found the plaintiff’s claim insufficient under Rule 9(b), but again gave the plaintiff the opportunity to amend this claim.