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KLEIN v. COUNCIL OF CHEM. ASSNS.

April 3, 1984

SIMON KLEIN and RUTH KLEIN
v.
COUNCIL OF CHEMICAL ASSOCIATIONS, CHEMICAL INDUSTRY INSTITUTE OF TOXICOLOGY, NATIONAL ASSOCIATION OF PRINTING INK MANUFACTURERS, INC., PRINTING INDUSTRIES OF AMERICA, THE DOW CHEMICAL COMPANY, EASTMAN KODAK COMPANY, MINNESOTA MINING & MANUFACTURING COMPANY, MARTIN MARIETTA CORPORATION, POLYCHROME CORPORATION, VARN PRODUCTS COMPANY, INCORPORATED, R.B.P. CHEMICAL CORPORATION, RYCO-LINE SOLVENT COMPANY, MONARCH COLOR CORPORATION, VAN SON HOLLAND INK CORPORATION OF AMERICA, LIBERTY BRONZE INK COMPANY, Individually and as Representatives of the Class of Defendants named herein



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 I. FACTS

 This products liability action was brought by Simon Klein and his wife, Ruth Klein, against eleven manufacturers and suppliers of chemical products used in the printing industry, four trade associations serving the chemical and printing industries and a research institute; they are named defendants individually and as representatives of a class of manufacturers, distributors, and/or suppliers. Jurisdiction was asserted by reason of diversity of citizenship. Plaintiffs alleged that Simon Klein contracted bladder cancer because he was exposed over a fifty-year period to certain carcinogens by "inhaling the fumes, mists, fogs, vapors and dusts of the various commercial chemical products then commonly used in the . . . industry." Second Amended Complaint at para. 19(a).

 Plaintiffs' original complaint was dismissed without prejudice on October 9, 1981 for failure adequately to allege subject matter jurisdiction. Plaintiffs filed a first amended complaint; seven defendants filed motions to dismiss for lack of jurisdiction or failure to state a claim. Plaintiffs filed a second amended complaint to cure the jurisdictional defects of the first amended complaint. By Order of June 30, 1983, the motion of defendant Council of Chemical Associations ("CCA") to dismiss for lack of personal jurisdiction was granted. The motion of defendants National Association of Printing Ink Manufacturers, Inc. ("NAPIM") to dismiss for lack of subject matter jurisdiction and for lack of venue were denied. The motions of defendant Chemical Industry Institute of Toxicology ("CIIT") to dismiss for lack of subject matter jurisdiction and lack of personal jurisdiction were denied; its motion to dismiss for failure to state a claim was taken under advisement. Subsequently, all defendants joined in motions to dismiss the second amended complaint. *fn1" After oral argument, the court held that the second amended complaint failed to state a cause of action. This opinion explains the court's ruling from the Bench and subsequent grant of the motions to dismiss.

 It is alleged that Simon Klein was continuously employed in the letterpress and offset lithography industries and exposed to the various commercial chemical products commonly used in these industries for much of his working day during substantially all his adult life. para. 10(a). From 1933 to 1942, Klein was a broker in a letterpress business and spent a substantial portion of each workday in the pressroom where it is alleged he necessarily inhaled various unidentified commercial chemical products. Then from 1942 to 1946, Klein served as a tank commander with the Army in Europe; nothing is alleged as to his exposure to chemicals during World War II.

 From 1946 to 1962, Klein was a broker and then the owner of his own letterpress and offset lithography business. Again, it is alleged that he spent a substantial part of his working day in the enclosed confines of his business where he inhaled various unidentified commercial chemical products commonly used not necessarily in his business but generally in the industry. He sold his own business in 1962 and worked as a print shop contracting agent and nursing home administrator in Florida from 1962-1966. His exposure to chemical products during this period has not been asserted.

 Klein returned to Philadelphia in 1966 as a manufacturer of printed ribbons and binder of books; this again subjected him to the inhalation of various unidentified commercial products used by him in these operations until 1967. From 1967 to 1970, Klein was an estimator and expeditor at a lithography company where he spent a significant part of each working day in the enclosed confines of the production plant where he inhaled fumes, mists, fogs, vapors and dust of commercial chemical products commonly used in the industry.

 From 1970 to 1971 Klein, a self-employed broker of print jobs, spent a substantial portion of the working day at a printing company; thereafter, he was employed by the printing company for seven years. For the first two years as an outside salesman he spent a substantial portion of his working day in the production plant but after the company relocated to New Jersey he only spent a couple of hours of three days a week in the plant; the rest of his working time he spent in customers' offices. While in the production facilities, he inhaled by-products of various commercial chemical products, identified only as those commonly used in the letterpress and offset lithography industries. From 1978 to 1979 Klein was a salesman, estimator and expeditor for a printing firm until he was hospitalized for treatment of bladder carcinoma.

 The products are not named nor are the manufacturers. It is not stated that the products are unlabelled but it is alleged that no labels of any manufacturer, distributor or supplier enumerated the constituent chemical components or warned that the product contains a carcinogen or that persons using it should have periodic medical examinations to detect early bladder carcinoma. para. 23. It is stated that among these various chemical products, known and unknown, are certain

 
ink pigments and dyes selected from classes of compounds which, together with their metabolic products, have specifically been associated with bladder carcinoma in humans . . . [, to wit,] (a) benzidines (e.g., 3-3 dichlorobenzidine, 1-naphthylamine, 2-napthylamine) and benzidine based dyes; (b) o-tolidine and o-tolidine based dyes; (c) o-dianisidine and o-dianisidine based dyes; and (d) azo-type dyes and diazonium compounds.

 para. 24. Plaintiffs further state, "magenta is a proven bladder carcinogen, while para red and dinitroaniline orange are proven mutagens. Mutagenics are suspect carcinogenics." para. 25. Included among these chemical products are certain

 
organic solvents in inks and chlorinated hydrocarbon solvents in roller washes, type washes, fountain solutions, thinners, etc., some or all of which are specifically associated with bladder carcinoma in humans . . . [, to wit] (a) toluene (which may contain benzidine contaminants); (b) xylene; (c) ethyl benzene; (d) methylene chloride; and (3) tetrachloroethylene.

 para. 26. Plaintiffs also include among the chemical products

 
anhydrous ammonia, certain carcinogenic lead salts, new polymers in solventless inks which are used to bind pigment to the printed surface, and conventional plasticizers and oxidation accelerants used in inks. Each is highly toxic to humans. Plaintiffs allege on information and belief that one or more of the offending carcinogens will be found among this group of chemical products."

 para. 27.

 Plaintiffs admit that they "are unable at this point to identify which of the various commercial chemical products described . . . contain which of the various bladder carcinogens . . . because no product label contains information identifying the constituent chemical agents or identifying the product as being or containing a bladder carcinogen." para. 28. They contend that defendants can and must determine with reasonable effort which commercial chemical products were commonly used in the letterpress and offset lithography industries from 1933-1942, 1946-1962, 1962-1966 (Florida), and 1966-1979 (para. 30); they believe defendants can determine this from historical files and comprehensive product catalogs (para. 29), and then determine from Material Safety Data Sheets for each product used in the past or now being used "the constituent chemical agents, said agents' degree of toxicity to humans, and the dangers attendant upon exposure." para. 31.

 Plaintiffs allege on information or belief that defendants have access to data proving or tending to establish the bladder-specific carcinogenesis of various chemical agents they use by reference to inhalation toxicology and that they have resisted attempts to compel dissemination of these reports not reasonably available to plaintiffs other than by discovery in this lawsuit. para. 32. Plaintiffs believe that by investigating the files of defendants to establish which chemical products containing carcinogens were shipped into Philadelphia and the Delaware Valley for use in the industry, they can determine the products involved and then identify the particular defendants that have been appropriately named in this litigation. para. 34.

 Plaintiffs' complaint includes a section on the epidemiology of bladder tumors. paras. 35-44. Relative to the motion is their assertion that in excess of 15,000 toxic chemical and physical agents are already in use in American industry. para. 35. Among the factors relevant to the incidence of bladder tumors are alleged to be race, sex, geographic location (industrialized nature of area; urban versus rural environment) and occupation. paras. 37, 44. It is asserted that repeated occupational exposures increase the chance of developing bladder carcinoma and are an admitted hazard. para. 38. From this plaintiffs conclude that the unfamiliarity of these medical and health hazard statistics to the general public is "largely if not entirely" the responsibility of the "vast extent of industry domination over industrial hygiene, research, standard setting, and determination of disclosure requirements. . . ." para. 39. For this failure to warn of carcinogens in the environment, failure to counsel persons in the printing industry to seek periodic routine medical examinations to detect latent carcinoma, failure to test various commercial chemical products to which industry employees were exposed for certain carcinogens, failure to make such products safe from carcinogenesis and for inclusion of carcinogenic chemical agents as ingredients in whatever commercial chemical products are ultimately determined to have them which rendered said products defective in design, members of the defendant class (defined as those who manufactured, supplied, distributed or did research about these products yet to be identified) are claimed liable to plaintiffs because exposure to these chemicals allegedly caused or was a substantial factor in inducing Klein's bladder carcinoma.

 II. DISCUSSION

 Under Fed.R.Civ.P. 12(b)(6), "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) (footnote omitted). "The plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn." Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir. 1977); accord, Rogin v. Bensalem Township, 616 F.2d 680, 685 (3d Cir. 1980), cert. denied sub nom., Mark-Garner Associates, Inc. v. Bensalem Township, 450 U.S. 1029, 68 L. Ed. 2d 223, 101 S. Ct. 1737 (1981) ("In reviewing the dismissal on the pleadings . . . take all of the well-pleaded allegations . . . as true, construe the [pleadings] in the light most favorable to [non-moving party], and determine whether, under any reasonable reading of the pleadings, the [party] might be entitled to relief." (footnote omitted)). Pennsylvania law applies in this diversity action. *fn2" Baker v. Outboard Marine Corporation, 595 F.2d 176, 182 (3d Cir. 1979).

 Viewing the 47 pages of plaintiffs' pleading as to the defendants and the printing industry in a light most favorable to plaintiffs, the Second Amended Complaint alleges that each defendant: 1) is strictly liable for and/or negligent in its failure to warn plaintiff of the hazards allegedly posed by the products used in the industry, whatever they may be (see e.g., paras. 50, 60, 62, 63, 78 and 79); 2) breached its implied warranty of merchantability (see, para. 75); 3) knowingly and intentionally inflicted severe emotional distress (see, para. 83); 4) caused a loss of consortium (see, paras. 86-87); and 5) acted in conspiracy with other defendants to defraud plaintiffs (see e.g., para. 64).

 A. COUNT I - TORT - STRICT LIABILITY OR NEGLIGENCE.

 1. Product Defendants :

 Plaintiffs' Second Amended Complaint alleges that the defendant product manufacturers are strictly liable or in the alternative were negligent for placing in "the stream of commerce toxic chemical products. . . ." para. 59(a). Section 402A of the Restatement (Second) of Torts (1965), adopted in Pennsylvania, *fn3" provides:

 
One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ...

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