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Dickens v. A-1 Auto Parts & Repair, Inc.

United States District Court, S.D. Mississippi, Southern Division

November 1, 2018

WILLIAM DICKENS and KARLA DICKENS PLAINTIFFS
v.
A-1 AUTO PARTS & REPAIR, INC., ET AL. DEFENDANTS

          MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS OF DEFENDANT FORD MOTOR COMPANY

          LOUIS GUIROLA, JR. UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is the [89] Motion to Dismiss Certain Causes of Action in Plaintiffs' Complaint filed by the defendant Ford Motor Company pursuant to Fed.R.Civ.P. 12(b)(6). The plaintiffs have not filed a response. After due consideration of the Motion and the relevant law, it is the Court's opinion that the Motion should be granted. Accordingly, Ford's Motion to Dismiss will be granted.

         Discussion

         In this products liability case, the plaintiffs allege that William Dickens developed mesothelioma as a result of his exposure to asbestos from use of certain products in his work as a mechanic and his use of talcum powder products. Ford Motor Company is included among the defendants because it “designed its braking systems for asbestos-containing brake linings such that no other material could be utilized as brake linings in those systems.” (Compl. 13 (¶20), ECF No. 1-2.) Ford requests dismissal of certain claims alleged in the Complaint.

         1. The Legal Standard

         “To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.'” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of [his or her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotation marks, brackets, and citation omitted). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” In re Katrina Canal, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). “The court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Id. (quoting Martin K. Eby Const. Co., Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).

         2. Alternative Methods of Showing Causation

Ford's motion seeks dismissal of the causes of action set out in the following paragraph:
In the event that Plaintiffs are unable to identify each injurious exposure to Defendants' Products, Plaintiffs would show the Court that the Defendants named herein represent or represented a substantial share of the relevant market of Defendants' Products at all times material to this cause of action. Consequently, each Defendant should be held jointly and severally liable under the doctrines of enterprise liability, market-share liability, concert of action and alternative liability, among others.

(Compl. 18 (¶29), ECF No. 1-2.)

         Ford argues that the four theories of recovery set out in this paragraph, although adopted by a few jurisdiction in limited circumstances, have never been recognized in Mississippi. The doctrines of enterprise liability, market-share liability, concert of action liability, and alternative liability “relieve a plaintiff of his burden to prove product identification and proximate cause.” (Def. Mem. 4, ECF No. 91) (citing Collins v. Eli Lilly Co., 342 N.W.2d 37, 45-47 (Wis. 1984) (alternative liability, concert of action liability, and enterprise liability); Sindell v. Abbott Labs., 607 P.2d 924, 930-32 (Cal. 1980) (market share liability, concert of action liability)). But in any Mississippi products liability action, “‘it is incumbent upon the plaintiff. . . to show that the defendant's product was the cause of the plaintiff's injuries.'” Gardley-Starks v. Pfizer, Inc., 917 F.Supp.2d 597, 602 (N.D. Miss. 2013) (quoting Moore ex rel. Moore v. Miss. Valley Gas Co., 863 So.2d 43, 46 (Miss. 2003)). Without evidence of exposure to a specific defendant's product, the plaintiffs cannot carry their burden of proof against that defendant. Explaining the proper standard, the Mississippi Supreme Court stated:

[I]n asbestos litigation cases, the frequency, regularity, and proximity test is the proper standard in determining exposure and proximate cause. So that there can be no question, we today add product identification to that standard as well. Because the plaintiffs have failed to prove product identification, exposure, and proximate cause of Monsanto's products with any regularity, frequency, or proximity to the plaintiffs, consistent with our holding in Gorman-Rupp, the plaintiffs' case fails.

Monsanto Co. v. Hall, 912 So.2d 134, 137 (Miss. 2005).

         Because the plaintiffs attempt to bring their product liability claims under theories that are not recognized in Mississippi law, the claims based on alternative methods of showing causation set out in paragraph ...


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