United States District Court, M.D. Pennsylvania, April 1, 2020 .
Plaintiff, Rhonda Gorton, filed this asbestos-related lawsuit in Pennsylvania on behalf of her husband, Thomas Gorton (“Decedent”). Mrs. Gorton’s Complaint alleged Decedent suffered and died from mesothelioma as a result of his exposure to asbestos from his work as a service technician for AT&T Inc. and AT&T Communications, Inc. in Ohio from 1986 to 1988, among other things. Specifically, she alleged that Decedent was exposed to asbestos-containing bags or pillows “believed to be manufactured by AT&T Corp.” and “used to plug cable and telephone holes.” After having her initial Complaint and amended Complaint dismissed by the Court on motion by AT&T Corp. (“AT&T”) for failure to state a claim for relief under F.R.C.P. 12(b)(6), Mrs. Gorton was permitted to file a motion for leave to file a Second Amended Complaint (“the Motion”) in order to remedy the deficiencies of her previous Complaints. Mrs. Gorton asserted the following causes of action in the proposed Second Amended Complaint as to AT&T: Product Liability; Breach of Implied Warranty; Negligence; Intentional Conduct Fraudulent Concealment; Premises Liability and Loss of Consortium. AT&T argued in opposition to the Motion, among other things, that Mrs. Gorton’s proposed Second Amended Complaint did not state a plausible claim against AT&T under Rule 12(b)(6) and that the claims are barred by the exclusivity provisions of the Ohio Workers’ Compensation Act, OHIO REV. CODE §§ 4123.01-4123.99.
The court here explained that Federal Rule of Civil Procedure 15(a) provides, in pertinent part, that “[t]he court should freely give leave when justice so requires,” but Rule 15 “does not permit amendment when it would be futile. Futility means that the complaint, as amended, would fail to state a claim upon which relief could be granted.” Further, quoting Bell Atlantic Corp. v. Twombly, the court reiterated, “while a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions.” 550 U.S. 544, 570 (2007). Stated another way, “a plaintiff must set forth ‘sufficient factual allegations to raise a reasonable expectation that discovery will reveal evidence’ of the elements of the claim for relief.” Connelly v. Lane Constr., Corp., 809 F.3d 780 (3d Cir. 2016).
With that standard in mind, the court turned to AT&T’s first argument. By clarifying that AT&T Corp., as opposed to AT&T Inc., manufactured the asbestos-filled bags or pillows to which Decedent was exposed, the court found that Mrs. Gorton’s Second Amended Complaint did state a plausible claim. The court explained that allegations based upon “information and belief,” such as Mrs. Gorton’s here, are permissible “when the facts at issue are peculiarly within the defendant’s possession.” The court went on to state, “here, facts about whether AT&T Corp. manufactured the asbestos-filled pillow or bags are within AT&T Corp.’s control, and Mrs. Gorton sufficiently alleged that Mr. Gorton was employed by AT&T Corp. as a service technician performing work with the asbestos-filled pillow or bags at the time he was allegedly exposed to asbestos. Under those circumstances, Mrs. Gorton’s allegations about AT&T Corp. manufacturing the asbestos-filled pillows or bags are plausible.”
As to AT&T’s second argument, regarding the Ohio Worker’s Compensation Act (“OWCA”), although neither party conducted a choice of law analysis as requested by the court, the court conducted the analysis on their behalf. Since this is a Pennsylvania court, the court applied the Pennsylvania choice of law analysis. In Pennsylvania, this is a two part analysis, first, the court must determine if a true conflict exists, and second, the court must analyze each forum’s relevant contacts in order to determine the state with the greater interest. Here, the Pennsylvania Worker’s Compensation Act (“PWCA”) and the OWCA are substantially different, in that the PWCA provides for exceptions to the exclusivity provision and the OWCA does not; this indicates the relevant differences between the workers’ compensation laws, namely one bars claims of intentional torts while the other does not. Therefore, a true conflict exists and the court moved on to the second step of the inquiry which considers each forum’s relevant contacts to the case. Since Mr. Gorton was allegedly exposed to asbestos in Ohio; AT&T Corp. employed Mr. Gorton and Mr. Gorton came into contact with the asbestos-filled pillows or bags in Ohio and the relationship between Mr. Gorton and AT&T Corp. was centered in Ohio, the court found that “Ohio has the most significant relationship to and the greater interest in the claims arising between Mrs. Gorton and AT&T Corp.” Accordingly, the court applied Ohio law to determine whether Mrs. Gorton’s claims were barred under the OWCA.
Under the OWCA, the only time an action may be brought outside of the OWCA against an employer is “when an employer’s conduct is sufficiently egregious to rise to the level of an intentional tort.” Therefore, the Court allowed Mrs. Gorton’s cause of action for Intentional Conduct Fraudulent Concealment to remain. The causes of action which did not require intentional conduct, namely, Breach of Implied Warranty, Negligence and Premises Liability were barred against AT&T. Because the OWCA does not bar claims against AT&T in its capacity of manufacturer of asbestos bags and pillows which it provided to Decedent during the course of his employment, the court also allowed the count for Product Liability to stand. Finally, the court also allowed the cause of action for Loss of Consortium to stand.