United States District Court, D. Colorado
DOUG BARRY, MICHAEL KIERNAN, PAUL MOLER, NICHOLAS SOOTER, LINDA SPUEHLER, and DENNIS MAUSER, Plaintiffs,
v.
WEYERHAEUSER COMPANY, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
Scott
T. Varholak United States Magistrate Judge.
This
civil action is before the Court on the Motion of Defendant
Weyerhaeuser Company to Dismiss Amended Complaint Pursuant to
Federal Rule of Civil Procedure 12(b)(6) [#22] (“the
Motion”). The Motion has been referred to this Court.
[#23] This Court has carefully considered the Motion and
related briefing, the entire case file, and the applicable
case law, and has determined that oral argument would not
materially assist in the disposition of the Motion. For the
following reasons, the Court respectfully
RECOMMENDS that the Motion be
DENIED.
I.
FACTUAL ALLEGATIONS[1]
Defendant
is one of the world's largest private owners of
timberlands. [#19 at ¶ 6] Among the products produced by
Defendant are TJI joists used for residential construction.
[Id. at ¶¶ 7-8] The joists are composed of
wood particles and treated with Flak Jacket coating, a
proprietary coating designed by Defendant. [Id.] The
coating is designed to enhance the fire resistance of joists
used in construction. [Id. at ¶ 8]
In
December 2016, Defendant began commercial production of a
fourth generation of Flak Jacket known as “Gen
4.” [Id. at ¶ 9] Gen 4 Flak Jacket
contained a formaldehyde-based resin. [Id. at ¶
11] In April 2017, Defendant received notice that homeowners
were complaining of an odor in homes in which TJI joists with
Gen 4 Flak Jacket were installed. [Id. at ¶ 12]
Defendant concluded that the odor was related to formaldehyde
off-gassing. [Id.]
Production
of the Gen 4 Flak Jackets continued through June 27, 2017.
[Id. at ¶ 9] On July 6, 2017, Defendant sent a
letter to “Dealers/Distributors/Home Builders”
warning them of an odor in homes that was “related to
the coating of the TJI's, which does contain
formaldehyde.” [Id. at ¶ 13] One week
later, Defendant sent another letter asking dealers to
“[p]lease not sell any TJI Joists with Flak
Jacket Protection manufactured after December 1, 2016.”
[Id. (emphasis in original)] In that same letter,
Defendant wrote that it would be “collecting all
existing inventory of TJI Joists with Flak Jacket protection
manufactured after Dec[ember] 1, 2016.” [Id.]
Another letter sent that same day warned builders that
“[i]f your contractors need to work in the basements in
affected homes, we recommend that you contact our customer
care line for guidance.” [Id.]
On July
18, 2017, Defendant admitted that it “ha[d] determined
that recent customer feedback regarding an odor in certain
newly constructed homes [wa]s related to a recent formula
change to the Flak Jacket coating that included a
formaldehyde-based resin.” [Id. at ¶ 14]
Defendant announced that it had stopped all production, sales
and shipment of the product. [Id.] Defendant advised
affected homeowners to vacate their homes until the Flak
Jacket could be remediated. [Id.] According to the
First Amended Complaint, months before ordering cessation of
production and distribution of the TJI joists with Gen 4 Flak
Jacket protection, test results notified Defendant that these
products had been off-gassing formaldehyde at levels known to
cause injury and illness. [Id. at ¶¶ 16,
17]
The
First Amended Complaint alleges that the Occupational Safety
and Health Administration (“OSHA”) has recognized
formaldehyde as a cancer hazard that has been linked to
increased risk of cancer of the nose, throat, and sinuses,
nasopharyngeal and oropharyngeal cancer, lung cancer, and
leukemia. [Id. at ¶ 18] Exposure also results
in respiratory illnesses. [Id.] OSHA formaldehyde
standards set a permissible exposure limit at .75 parts per
million measured as an eight-hour time weighted average.
[Id. at ¶ 19] ¶ 2 parts per million, the
maximum exposure allowed is 15 minutes. [Id.] Levels
exceeding 100 parts per million are immediately dangerous to
life and health. [Id.]
Plaintiffs
worked as inspectors, supervisors, and in other construction
capacities during the construction and inspection of homes
built using TJI joists treated with Gen 4 Flak Jacket.
[Id. at ¶ 10] ¶ 2017, each of the
Plaintiffs worked in and around homes containing TJI joints
treated with Gen 4 Flak Jacket protection. [Id.]
More specifically, the homes Plaintiffs Doug Barry, Michael
Kiernan, Dennis Mauser, Linda Spuehler, and Paul Moler worked
in and around were located in the Wyndham Hill subdivision in
Weld County, Colorado, and the homes Plaintiff Nicholas
Sooter worked in and around were located in the Dove Creek
subdivision in Douglas County, Colorado. [Id.]
Because
of their work, each of the Plaintiffs were exposed to
formaldehyde contained in TJI joists with Gen 4 Flak Jacket
protection. [Id.] Plaintiffs “were unknowingly
exposed to dangerous levels of formaldehyde, without adequate
protection, for hours a day over the course of months.”
[Id.] Specifically, “Plaintiffs were exposed
to levels exceeding 2 parts per million for many hours per
day, for months, without any hygiene monitoring or medical
surveillance.” [Id. at ¶ 19] The levels
of formaldehyde to which Plaintiffs were exposed “were
so excessive that it was virtually impossible for them not to
become ill.” [Id. at ¶ 22] As a result of
this exposure, Plaintiffs suffered injuries, “including
coughs, shortness of breath, burning eyes, rashes, [] sinus
issues, and increased risks of respiratory ailments and
cancer.” [Id. at ¶ 30; see also
Id. at ¶¶ 21, 36]
On June
28, 2018, Plaintiffs filed the instant action. [#1]
Plaintiffs' First Amended Complaint brings two causes of
action: strict products liability and negligence. [#19 at
7-10] On October 5, 2018, Defendant filed the instant Motion
pursuant to Federal Rule of Civil Procedure 12(b)(6), seeking
to dismiss the First Amended Complaint for failure to state a
claim. [#22] Plaintiffs have responded to the Motion [#24],
and Defendant replied [#31].
II.
STANDARD OF REVIEW
Under
Federal Rule of Civil Procedure 12(b)(6), a court may dismiss
a complaint for “failure to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). In
deciding a motion under Rule 12(b)(6), a court must
“accept as true all well-pleaded factual allegations .
. . and view these allegations in the light most favorable to
the plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124 (10th Cir. 2010) (alteration in original) (quoting
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009)). Nonetheless, a plaintiff may not rely on mere
labels or conclusions, “and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
“To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). Plausibility refers
“to the scope of the allegations in a complaint: if
they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (quoting Twombly, 550
U.S. at 570). “The burden is on the plaintiff to frame
a ‘complaint with enough factual matter (taken as true)
to suggest' that he or she is entitled to relief.”
Id. (quoting Twombly, 550 U.S. at 556). The
court's ultimate duty is to ...