Talcum Powder Defendant’s Motion to Dismiss Granted on Civil Conspiracy; Denied as to Punitive Damages U.S. District Court for the Middle District of North Carolina, June 7, 2018
NORTH CAROLINA — American International Industries (AII) was sued by plaintiff Lloyd Bell. The plaintiff claimed his decedent had developed mesothelioma from her use of talcum powder during her work as a hairdresser and her education during beauty school. AII moved to dismiss the plaintiff’s claims for willful and wanton conduct, malice, conspiracy, and punitive damages. The court began its review with the standard for a motion to dismiss. According to the court, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” However, speculation and conclusory allegations do not meet the level required to survive a motion to dismiss. AII took the position that the plaintiff had failed to state a claim for both punitive damages and civil conspiracy. On the other hand, the plaintiff argued that AII’s motion as to failure to state a claim was untimely since the case started in state court in 2015 and was not raised by AII at that time. The plaintiff relied on the Jaeger and Northstar decisions for this proposition.
The court was not persuaded by this argument as both Jaeger and Northstar were cases already pending in the District Court whereas the instant state court action was ultimately dismissed with prejudice on grounds of forum non conveniens. The plaintiff then filed his complaint in federal court. Therefore, AII’s motion was not untimely. As for punitive damages, AII argued that the plaintiff failed to state a claim under North Carolina law. The court reminded that punitive damages under North Carolina law may be found if there are “compensatory damages and an aggravating factor of fraud, malice, or willful and wanton conduct” in conjunction with the injury. AII also took the position that whether it was grossly negligent was irrelevant in the analysis. The court acknowledged that gross negligence and willful and wanton conduct were used interchangeably at times to describe a place between negligence and intentional conduct. Relying on the recent Justice matter, the court pointed out that the “distinction between gross negligence and willful and wanton conduct is that gross negligence is done with a disregard for the rights and safety of others whereas an act that is willful is done with “set purpose.” Specifically, “gross negligence only requires the willful act, and not necessarily the willful injury. Therefore, a willful or wanton act rises above an act of gross negligence. Accordingly, the question before the court was whether the plaintiff “plausibly pled” that AII “consciously and intentionally disregarded the rights and safety of others.” After going through the complaint line by line, the court concluded that the complaint illustrated not only allegations sufficient to survive the motion but also how AII allegedly ignored advice regarding the hazards of asbestos. The court denied AII’s motion to dismiss as to punitive damages.
Moving to AII’s motion to dismiss the plaintiff’s claim for civil conspiracy, AII argued that the complaint only generally alleged that the defendants had conspired. The court quickly agreed and noted that the complaint was vague with respect to the civil conspiracy claims. The plaintiff sought leave to amend his complaint to address the civil conspiracy count. The court declined, as at this stage, the defendants would be prejudiced should the court grant the plaintiff’s motion to amend the complaint.