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Robert Coene, Valerie Coene v. 3m Company

August 10, 2011


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is a products liability diversity action under New York State Law, in which Plaintiffs claim, inter alia, that Robert Coene ("Mr. Coene") developed silicosis after being exposed to "powder coatings" manufactured by Potters Industries, Inc. ("Potters") and Arkema, Inc. ("Arkema"). Potters and Arkema have each filed a motion to dismiss the complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6). The applications are denied.


Unless otherwise noted, the following facts are taken from Plaintiffs' Complaint ("the Complaint") in this action, and are presumed to be true for purposes of this Decision and Order. Mr. Coene was formerly employed by Eastman Kodak Company ("Kodak") between January 1992 and February 2002, in which capacity he was exposed to silica dust. Despite having worn respirator masks, Mr. Coene developed silicosis, a lung disease caused by inhalation of silica dust.*fn1 Plaintiffs maintain that Arkema and Potters manufactured "pow[d]er coatings which contained silica or would transform into crystalline silica during the industrial process occurring at the Eastman Kodak plant." Complaint ¶ 26. Plaintiffs further allege that Arkema and Potters "failed to warn [Mr. Coene] that the materials and products in question that were handled by [him] could cause a deadly disease known as silicosis." Id. Count VI of the Complaint purports to state products liability claims against Arkema and Potters, based on, inter alia, the failure to warn "of the dangers associated with continued exposure to its [sic] product." Id. at ¶ 61. Similarly, Counts VII and VIII purport to state claims for negligence and breach of implied warranty, respectively, against both Arkema and Potters. These claims refer to "these chemical products" and "these materials," but do not name a particular product manufactured by either Arkema or Potters. Instead, the Complaint describes the products generally as "powder coatings" containing or giving off silica. The Complaint does not explain the particular "industrial process" in which Arkema's and Potters' products were used.

Arkema and Potters contend that the Complaint fails to state any claim against them, for essentially two reasons. In that regard, both Arkema and Potters maintain that the Complaint is defective because it does not specifically identify the products which injured Mr. Coene. For example, Arkema states that, "[t]he most specific reference is to powder coatings, a reference to a general category of products, [which] does not put Arkema on notice as to what claims are being asserted against it." Christopher Thomas Aff. [#5-1] ¶ 2. Arkema goes on to indicate that it "manufactures dozens of coating products," and consequently, "the phrase 'powder coatings,' without more, is meaningless in this context." Arkema Memo of Law [#5-2] at 6. Potters similarly contends that Plaintiff's description of "powder coatings" is too vague.

As an additional argument, Potters maintains that it does "not manufacture anything that even closely resembles 'powder coatings,'" and that consequently, Plaintiffs' allegations do "not put Potters on notice as to what claims are being asserted against it." Richard Leff Aff. [#6] at ¶ 2. Potters explains that while it sells "very fine glass beads made of amorphous silica," Potters Memo of Law [#6-1] at 2, n.2, they "simply cannot be converted from amorphous silica to crystalline (harmful to human health) form." Id. at 5. Moreover, Potters contends that it did not sell any glass beads directly to Eastman Kodak, but instead, "sold . . . large sacks to retail distributors throughout the country, which further complicates [its] efforts to identify the alleged product identified in the Complaint." Id.

Plaintiffs respond that their Complaint satisfies FRCP 8(a), and that the points raised by Arkema and Potter will be addressed through discovery. Alternatively, Plaintiffs request leave to file an amended complaint. On July 21, 2011, counsel for Plaintiffs, Arkema, and Potters appeared before the undersigned for oral argument.


Arkema and Potters seek the dismissal of the Complaint for failure to state a claim, pursuant to FRCP Rule 12(b)(6). The applicable legal standard is clear:

Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. 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 entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. 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).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]" as opposed to merely conceivable.), reversed on other grounds, Ashcroft v. Iqbal, 129 S.Ct.1937 (2009). When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999).

Applying these applicable legal principles, the Court finds that Plaintiffs' claims against Arkema and Potters satisfy FRCP 8(a). The Complaint gives them fair notice of Plaintiffs' claims, which all involve the fact that Mr. Coene developed silicosis after breathing in silica dust from powder coatings manufactured by Arkema and Potters. The Complaint also explains the factual ground for the claims, which is that between January 1992 and February 2002, Mr. Coene performed manufacturing work for Eastman Kodak, during which he breathed in silica dust given off by powder coating products manufactured by Arkema and Potters which contained silica. Although the Complaint does not name the particular products which they allegedly manufactured, "for most types of cases, the Federal Rules eliminated the cumbersome requirement that a claimant set out in detail the facts upon which he bases his claim." Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1965, n. 3 (citation and internal quotation marks omitted). Arkema and Potters ought to know whether they sold "powder coating" material containing silica between January 1992 and February 2002.*fn2

Consequently, they can frame an answer to the Complaint. Additional information about the specific products at issue can be developed during discovery. See, Winslow v. W.L. Gore & Assoc, Inc., Civil Action No. 10-116, 2011 WL 866184 at *2 (W.D.La. Jan. 21, 2011) ("[T]his is a products liability case where almost all of the evidence is in the possession of defendant or other entities. Proof will necessarily be technical in nature and it is likely impossible for plaintiff to state more specific allegations regarding defects in manufacture and design ...

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