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CHANCE v. E.I. DU PONT DE NEMOURS & CO.

January 23, 1974

Randy CHANCE et al., Plaintiffs,
v.
E.I. Du PONT De NEMOURS & COMPANY, INC., et al., Defendants


Weinstein, District Judge.


The opinion of the court was delivered by: WEINSTEIN

WEINSTEIN, District Judge.

I. FACTS AND PROCEEDINGS

 These actions arise out of separate accidents scattered across the nation in which children were injured by blasting caps. Damages are sought from manufacturers and their trade association, the Institute of Makers of Explosives (IME). Plaintiffs' basic allegation is that the injuries were a proximate result of agreement by members of the explosives industry not to place any warning upon individual blasting caps. Federal jurisdiction is based on diversity of citizenship.

 Eighteen separate actions were originally consolidated for discovery and other pretrial proceedings. As the result of motions previously considered, the claims of three groups of plaintiffs were severed. See Hall v. E.I. Du Pont De Nemours & Co., Inc., 345 F. Supp. 353 (E.D.N.Y. 1972); 312 F. Supp. 358 (E.D.N.Y. 1970); Chance v. E.I. Du Pont De Nemours & Co., Inc., 57 F.R.D. 165 (E.D.N.Y. 1972). Claims of thirteen children injured in twelve unrelated blasting cap accidents between 1955 and 1959 remain. The accidents occurred in the states of Alabama, California, Maryland, Montana, Nevada, North Carolina, Tennessee, Texas, Washington and West Virginia. Plaintiffs are citizens of the states in which their injuries occurred.

 The corporate defendants in this case are one distributor (Austin Powder Co.) and five manufacturers of blasting caps who have comprised the bulk of this industry over the past fifty years. The are: E.I. Du Pont De Nemours & Co., Inc. ("Du Pont"), Hercules Powder Co. ("Hercules"), Atlas Powder Co. ("Atlas"), all citizens of and having their principal place of business in Delaware; American Cyanamid Co. ("Cyanamid"), a citizen of Maine, with its principal place of business in New Jersey; Olin Mathieson Chemical Corp. ("Olin"), a citizen of Virginia with its principal place of business in Connecticut; and Austin Powder Co. ("Austin"), a citizen of and having its principal place of business in Ohio. Also joined as a defendant is the industry trade association, IME, an unincorporated association with its principal place of business in New York. Each of the defendants conducts business in each of the states in which injuries occurred.

 Defendants have moved for severance of the actions which remain consolidated on the ground of improper joinder, and for dismissal or transfer of the claims thus severed. Our earlier orders reserved decision on this question pending an evidentiary hearing on the question of which law should govern the substantive issues in this case. 345 F. Supp. 353, 380-381; 57 F.R.D. 165, 171.

 As indicated below, the applicable law with respect to each of the substantive issues in these actions is not the law of New York. For this and other reasons these actions must be severed and transferred to the federal district court in the respective jurisdictions where the accidents occurred. 28 U.S.C. § 1404(a).

 This court's determination of the choice-of-law questions in this case and related issues such as the extent of any defendant's presence in New York or elsewhere are binding only with respect to the questions of severance and transfer now before this court. They are not intended to be dispositive of the same issues when raised with respect to the merits or other issues. Chance v. E.I. Du Pont De Nemours & Co., Inc., 57 F.R.D. 165, 169-171 (E.D.N.Y. 1972).

 II. EXTENT OF JOINT-INDUSTRY ACTIVITIES IN NEW YORK

 Central to plaintiffs' invocation of New York law is the contention that significant activity took place in New York with respect to a joint-industry determination not to label individual caps. To establish the requisite nexus with New York State, plaintiffs must show that, either independent of, or through delegation to, IME, the blasting cap industry made a determination to refrain from labeling individual blasting caps and that the decision in some meaningful way, was focused in New York.

 Analysis of the documents submitted to the court and the testimony of the witnesses who appeared at the choice-of-law hearing supports the conclusion that a joint-industry decision to refrain from labeling individual caps was in fact formulated. We turn our attention, therefore, to the issue of the locus of decision.

 With respect to an industry-wide policy formulation independent of IME, no evidence has been presented to lead to a determination of a New York nexus. Plaintiffs' case must therefore rest on proof of their allegation that in various instances from 1927 to 1962 IME was the focal point of a New York-based industry effort to avoid the labeling of individual blasting caps. The evidence does not support that conclusion. What joint action there was through IME took place on a national basis.

 IME was founded in 1913 to further the general welfare of the industry and to promote safety in the transportation, storage, use and handling of explosives. This association has maintained its office in New York City since 1913. The office is run by the Secretary-Treasurer, an officer elected annually by the IME Executive Committee. Four full-time and one part-time employees assist him in running the New York City office. In addition, IME retains the services of an explosives safety consultant who works out of Wilmington, Delaware.

 IME funds and records are kept in a New York bank. Dues are computed on the basis of members' pro rata share of total industry sales and the Secretary-Treasurer is empowered to sign all checks.

 What industry-wide decision making authority IME possesses is lodged in the Institute's standing committees composed of representatives of the individual manufacturers. Most of the meetings of these committees take place outside of New York.

 Of the standing committees, the Public Relations Committee is the group most often meeting in New York and making the most significant use of the New York office's facilities. This committee is charged with the development of the blasting cap safety education program. The content of this program has evolved from news releases, radio spots and selective mailings, to mass mailings to public and private schools, TV spots and paid ads appearing in magazines. The bulk of the New York activity consisted of distributing these educational materials to all parts of the country. IME conducts a substantial educational campaign in each of the ten states where an accident occurred. These activities have been conducted continuously for at least the past thirty years.

 Plaintiffs place special reliance on the minutes of the May 12, 1927 meeting of the IME Standardization Committee which they claim demonstrates an industry-wide determination not to label individual caps. A subcommittee had been designated in New York for the purpose of determining what sort of warning should be placed as case inserts in boxes of blasting caps. It worked at Wilmington and submitted its report to the Standardization Committee in Cincinnati in May 1927. This report contained recommendations for printed insert materials and suggested the labeling of boxes and cartons with cautionary warnings and the enclosure of suggestions for safe usage. The minutes of the Cincinnati meeting reflect a finding that marking each cap was not practical and a recommendation that it should not be attempted. It read in part:

 
The Committee decided that it is impractical to mark each individual cap or detonator or other device and recommended that no attempt be made to mark each one.

 The report was "approved" at Atlantic City, New Jersey in June 1927.

 Even were we to assume that this excerpt reflected an industry-wide determination, New York was not, in any meaningful way, the locus for this decision. Neither the work of this committee, nor its report, nor approval of the report had any significant connection with New York. Wilmington, Cincinnati, or Atlantic City was more clearly the location of decision.

 Plaintiffs also rely on the lobbying activities of IME with respect to proposed legislation on labeling in the mid-1950's. In May 1954, Representative Clifford Young of Nevada introduced in the 83rd Congress, Second Session, a bill to amend the Flammable Fabrics Act so as to prohibit the introduction or movement in interstate commerce of blasting caps unless stamped or labeled to indicate that they are dangerous (H.R. 9049, re-introduced in the 84th Congress as H.R. 3721). The bill was referred to the House Committee on Interstate and Foreign Commerce.

 The initial industry response was made by representatives of Hercules alone whose instructions came from company headquarters in Delaware. They called on Congressman Young at his Washington office and argued, generally, that labeling of individual caps would be counterproductive since it might create an attractive nuisance.

 The Hercules spokesmen apprised Mr. Young of the extensive blasting cap safety program. Congressman Young then requested an estimate of the cost involved in commencement and operation of an individual cap labeling program.

 In November 1954 representatives of the Wilmington members of IME met in Delaware and discussed the matter of presentation of the requested cost estimates. In December, a Hercules executive, a member of the IME Technical Committee, wrote from Delaware to the IME Secretary-Treasurer, in New York, asking that he organize the compilation of the type of cost data requested by Congressman Young. This was done through IME to avoid disclosure of any company's cost estimates to any other company.

 The Secretary-Treasurer then circulated a letter to the members of the industry asking them to submit to him their individual estimates of the cost data. From these estimates, computed by engineers and others outside of New York, he compiled in New York a composite figure.

 The matter came before IME, as a body, at the January 1955 meetings of the Technical and Executive Committees at the Waldorf Astoria in New York. An industry delegation was appointed to call upon Congressman Young in Washington, D.C., in March of 1955. At this meeting Mr. Young requested and was furnished the cost data which the New York office had compiled and he apparently decided not to press his bill.

 The evidence demonstrates that the members of the industry determined at the January Executive Committee meeting in New York to take a concerted stance with respect to Congressman Young's proposed legislation. In this instance, the industry did delegate some of its decision-making ...


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