IN RE: LITIGATION, 05C-09-020-JRS (Del.Super. 2-26-2007)

C.A. No. 05C-09-020-JRS(BEN), 06C-05-295-JRS(BEN).Superior Court of Delaware, New Castle County.Submitted: October 26, 2006.
Decided: February 26, 2007.

Upon consideration of Defendants’ Motions to Dismiss Roy Hamill and Joyce Hamill’s Fourth Amended Complaint.

DENIED.

Upon consideration of Defendant The McClatchey Company’s Motion to Dismiss Kay Heddinger’s First Amended Complaint.

DENIED.

Upon consideration of Defendant Behr Process Corporation’s Motion to Dismiss Kay Heddinger’s First Amended Complaint.

DENIED.

Upon consideration of Defendant’s Barton Solvents, Inc.’s, DaimlerChrysler
Corporation’s and 3M Company’s Motions to Dismiss
Kay Heddinger’s First Amended Complaint.
GRANTED with leave to amend.

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Ian Connor Bifferato, Esquire, Linda Richenderfer, Esquire, Chad J. Toms, Esquire, BIFFERATO GENTILOTTI BIDEN BALICK LLC, Wilmington, Delaware. Attorneys for Plaintiffs, Roy and Joyce Hamill, and Kay Heddinger.

William J. Cattie, III, Esquire, RAWLE HENDERSON LLP, Wilmington, Delaware. Attorney for Defendant, Barton Solvents, Inc.

Mark L. Reardon, Esquire, ELZUFON AUSTIN REARDON TARLOV MONDELL P.A., Wilmington, Delaware; Nancy Shane Rappaport, Esquire, DLA PIPER, DUDNICK GRAY CARY US LLP. Attorneys for Defendant, Behr Process Corporation.

James J. Freebery IV, Esquire, Katharine L. Mayer, Esquire, MCCARTER ENGLISH LLP, Wilmington, Delaware. Attorneys for Defendants, ConocoPhillips Holding Company, Chevron U.S.A. Inc., on behalf of Chevron Corporation, Sunoco, Inc. f/k/a Sun Co. Inc., ChevronPhillips Chemical Company LP, Occidental Petroleum Corporation, ConocoPhillips Holding Company, and ConocoPhillips Company.

Somers S. Price, Jr., Esquire, Daniel F. Wolcott, Jr., James M. Kron, Esquire, POTTER ANDERSON CORROON LLP, Wilmington, Delaware. Attorneys for Defendant, DaimlerChrysler Corporation.

Sherry Ruggiero Fallon, Esquire, TYBOUT, REDFEARN PELL, Wilmington, Delaware. Attorney for Defendant, The McClatchey Company d/b/a The Sacramento Bee.

Donald E. Reid, Esquire, Jason A. Cincilla, Esquire, MORRIS NICHOLS ARSHT TUNNELL, Wilmington, Delaware. Attorneys for Defendant, 3M Company.

MEMORANDUM OPINION
SLIGHTS, J.

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I.
Several defendants in this mass tort litigation have filed motions to dismiss complaints on the grounds that plaintiffs have failed to plead sufficient facts relating to their long term occupational exposure to benzene to meet Delaware’s pleading requirements and to state a cause of action. The motions ask the Court to measure the adequacy of the complaints against the standards set forth in Delaware Superior Court Civil Rules 8 (“Rule 8”) and 9(b) (“Rule 9(b)”). Specifically, the defendants urge the Court literally to construe the “notice pleading” aspects of Rule 8 and strictly to enforce the particularized pleading requirements of Rule 9(b) when considering the sufficiency of allegations that defendants’ wrongful conduct caused plaintiffs to be exposed to hazardous benzene-containing products. Plaintiffs acknowledge that Rule 9(b) requires them to plead the facts supporting their negligence claims with particularity, but encourage the Court to apply this standard in keeping with Rule 8’s direction that complaints be “short and concise.”

The parties have selected two complaints as representative samples of the degree of particularity with which plaintiffs generally have pled the facts supporting their claims: The Fourth Amended Complaint of Roy and Joyce Hamill (“the Fifth Hamill Complaint”), and The First Amended Complaint of Kay Heddinger, individually and as surviving spouse of Harold Heddinger (“the Second Heddinger

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Complaint”). In deciding the motions sub judice, the Court has evaluated the sufficiency of the designated pleadings but also has attempted to provide some general direction regarding the application of Delaware’s pleading requirements to complaints alleging long term occupational exposure to an allegedly toxic substance with the hope that this opinion will guide the parties going forward in this litigation.

For the reasons that follow, the Court has determined that the Fifth Hamill Complaint meets Delaware’s pleading requirements and that the motions to dismiss that complaint must be DENIED. The Second Heddinger Complaint, however, in many respects, falls short of the mark set by Rules 8 and 9(b). Accordingly, the Court has determined that three of the five motions to dismiss that complaint must be GRANTED with leave to amend. The other two motions to dismiss are DENIED.

II. A. The Hamill Complaints
1. The First Hamill Complaint

Mr. and Mrs. Hamill filed their original complaint on September 1, 2005, alleging injuries resulting from Mr. Hamill’s occupational exposure to products containing benzene.[1] The defendants were divided into two categories: product

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defendants and premises defendants.[2] The product defendants included those who allegedly manufactured or distributed the benzene-containing products to which Mr. Hamill was exposed.[3] The premises defendants included those who owned or operated the properties where Mr. Hamill alleged his exposure occurred.[4] Mr. Hamill’s claims against product defendants included negligence, willful and wanton conduct, strict liability, intentional misrepresentation, negligent misrepresentation, and breach of various warranties.[5] His claims against the premises defendants included negligence, willful wanton conduct, intentional misrepresentation, and negligent misrepresentation.[6] Mrs. Hamill made loss of consortium claims against all defendants.[7]
2. The First Motions to Dismiss

Between November 3, 2005 and December 30, 2005, multiple defendants moved to dismiss the first Hamill complaint for failure to state a claim upon which

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relief may be granted and for failure to plead fraud and negligence with particularity.[8] Mr. and Mrs. Hamill filed their First Amended Complaint on January 3, 2006, and the defendants re-noticed their motions to dismiss on the same grounds.[9]

At the outset of the April 3, 2006, oral argument on the first motions to dismiss, the plaintiffs indicated that they would voluntarily dismiss all claims in the complaints subject to motions to dismiss except the claims for negligence, willful and wanton conduct, and strict liability.[10] As to the remaining claims, the defendants argued that none of the selected representative complaints (including the first Hamill complaint) provided sufficient notice of the facts supporting the claims to allow for the preparation of a meaningful defense because none of the complaints identified the precise locations of exposure or the specific types of products that allegedly caused the plaintiffs’ injuries.[11] In particular, the defendants noted that the plaintiffs’ identification of “solvents” as a broad category of products containing benzene failed to satisfy notice pleading because “[b]enzene itself is considered a solvent.” They

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argued: “without saying which solvent [they are referring to] and where it came from . . . [the complaint] doesn’t put anybody on notice of anything.”[12] According to the defendants, the failure more specifically to identify the products at issue rendered them incapable of knowing what information to gather in their own defense, and what discovery to seek from other and third parties.[13] The defendants also argued that vague descriptions of premises provided no notice to the premises defendants as to which of their properties, if any, were implicated by the plaintiffs’ claims.

The plaintiffs responded that the level of detail in the complaints sought by the defendants would substantially lengthen their pleadings to the point that the complaints would no longer be “short and plain statement[s] of the claim” but rather long narratives, cumbersome to read and difficult to prepare.[14] Moreover, the plaintiffs feared that defendants would take undue advantage of the longer pleadings by refusing to provide discovery on any product or location not specifically identified in the complaint even though information regarding other products or locations would otherwise be discoverable.[15] According to the plaintiffs, at this early stage of the

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litigation, the defendants are in a better position to know which of their products contained benzene and on which of their properties benzene-containing products were present.[16] Further, the plaintiffs raised a concern that defendants would seek dismissal of some complaints, filed by plaintiffs who possessed less information at the time of filing, on the ground that other plaintiffs had included more information (presumably because more information was available to them when they filed). According to the plaintiffs, this comparison would be patently unfair and would result in inconsistent applications of what should be a settled pleading standard.[17]

The Court heard oral argument on April 3, 2006. At the conclusion of the hearing, the Court issued an oral ruling in which it granted the motions and attempted to articulate a pleading standard by which it would measure future pleadings in this litigation. Specifically, the Court held that the plaintiffs must “plead what they know about particular product classes[,] . . . particular locations of exposure[,] . . . [including] a general description of the plaintiff’s work at a particular site, and . . . what the plaintiff was doing [on the site] by way of recreation, [work, or otherwise] at the time of exposure.”[18]
The Court recognized that this standard was consistent

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with the expectation that plaintiffs would have investigated the facts supporting their claims against individual defendants with sufficient diligence to allow them to satisfy Rule 11’s requirement that the factual allegations in the complaint “have evidentiary support” or “are likely to have evidentiary support after a reasonable opportunity fo further investigation or discovery.”[19] The Court clarified that plaintiffs need not identify the product by name or grade, but must identify the product “with specificity to include its use as observed by the plaintiff.”[20]

In reaching its decision on the first motions to dismiss, the Court attempted to balance the defendants’ need for sufficient notice of the facts supporting the plaintiffs’ claims against the potential prejudice the plaintiffs might suffer if required to plead too many details.[21]
The Court attempted to strike this balance “in light of the circumstances surrounding the litigation,” such as the nature of the injuries sustained by the plaintiffs, the fact that the injuries allegedly occurred over the course of long careers working with products that plaintiffs claim they did not know to be dangerous, the fact that many defendants manufactured both benzene-containing and non benzene-containing solvents, and the difficulty defendants would likely

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encounter when trying to identify the products at issue without more than generic descriptions in the complaint. The Court also took into account the fact that the benzene litigation was, relatively speaking, in its infancy and, consequently, the parties (most specifically the defendants) lacked the institutional history that might exist in other toxic tort litigation (e.g. the asbestos litigation) that would allow them to narrow the product categories and likely sites of exposure based on past experience.[22] After announcing the standard it would apply to the motions, the Court dismissed the first amended Hamill complaint because it did not adequately identify the benzene-containing products to which Mr. Hamill allegedly was exposed or the locations where the exposure allegedly occurred. The dismissal was entered without prejudice and with leave to amend.

3. The Fifth Hamill Complaint

As best as the Court can tell from the docket, Mr. and Mrs. Hamill amended their complaint two times after the Court dismissed their first amended complaint and prior to filing the complaint at issue here. The third amended complaint drew several motions to dismiss. Thereafter, on August 31, 2006, Mr. and Mrs Hammill filed their

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Fifth Complaint[23] with claims against the product defendants for strict liability, willful and wanton conduct, and negligence.[24] The Fifth Hamill Complaint also made claims against the premises defendants for ultra-hazardous activity, willful and wanton conduct, and negligence.[25]

The Fifth Hamill Complaint is 47 pages long, 34 of which are devoted to pleading facts.[26] The facts appear to be divided into three parts: the first, contained in paragraph 3 and its subparts, addresses Mr. Hamill’s employment experience and generally describes his alleged exposure to benzene at six identified work sites.[27] In the second section, contained in paragraph 4 and its subparts, Mr. Hamill describes in more detail the premises where he alleges he was exposed to benzene.[28] The third section, contained in paragraph 5 and its subparts, identifies the products to which Mr. Hamill alleges he was exposed during his work history.[29]

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Six of the twenty-three named defendants moved to dismiss the Fifth Hamill Complaint pursuant to Superior Court Civil Rules 8, 9, and/or 12 (hereinafter “the Hamill defendants”). All six are premises defendants: ChevronPhillips Chemical Co.[30] and Chevron USA, Inc.,[31]
(collectively “the Chevron defendants”), ConocoPhillips Holding Co.[32] and ConocoPhilips Co.,[33] (collectively “the Conoco defendants”), Occidental Petroleum Corp.,[34] (“Occidental”), and Sunoco, Inc. (“Sunoco”).[35]
B. The Heddinger Complaints
1. The First Heddinger Complaint

On May 26, 2006, more than a month after the Court ruled on the first motions to dismiss and set the standard governing the degree of particularity required in her complaint, Kay Heddinger filed her original complaint alleging Mr. Heddinger suffered injury and eventually died from occupational exposure to products

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containing benzene.[36] Like Mr. and Mrs. Hamill’s First Complaint, the defendants were divided into product defendants and a single premises defendant.[37] Against the product defendants, Mrs. Heddinger made claims based on negligence, willful and wanton conduct, and strict liability.[38] The premises defendant was charged with negligence, willful wanton conduct, intentional misrepresentation, and negligent misrepresentation.[39] Mrs. Heddinger claimed loss of consortium against all defendants.[40]

On September 13, 2006, apparently in response to several motions to dismiss her initial complaint, Mrs. Heddinger filed her First Amended Complaint (“the Second Heddinger Complaint”)[41] in which she dropped the misrepresentation claims against all defendants but reasserted the claims based in negligence, willful and wanton misconduct, strict liability (as to the products defendants) and loss of consortium.[42]

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The Second Heddinger Complaint is 28 pages long with 11 pages devoted to pleading facts.[43] Much like the Fifth Hamill Complaint, the factual allegations of the Heddinger Complaint appear to be divided into three parts. The first part, contained in paragraph 4 and its subparts, pleads facts relating to Mr. Heddinger’s employment experience.[44]
Each subparagraph states the name of the employer, the city and state where the employer is located, the time period Mr. Heddinger worked for the employer, his job title, and broad classes of products manufactured by different defendants to which he was exposed.[45] The second part, contained in paragraph 5 and 5(a), identifies the premises where Mr. Heddinger worked during the course of his employment.[46] The third part, contained in paragraph 6 and its subparts, identifies the products to which Mr. Heddinger was exposed while working for different employers.[47]

Four product defendants and the lone premises defendant have moved to dismiss the Second Heddinger Complaint (hereinafter collectively “the Heddinger

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defendants”): Behr Process Corporation (“Behr”),[48] Barton Solvents, Inc. (“Barton”),[49] DaimlerChrysler Corporation (“Chrysler”),[50]
3M Company (“3M”),[51] and the McClatchy Company (“McClatchy”).[52]

III.
The themes of the motions sub judice echo those raised in the previously decided motions to dismiss. The moving defendants argue that plaintiffs have inadequately plead the specific products and premises at issue. They argue that plaintiffs have failed to take head of the Court’s prior admonitions that broad brush product and premises descriptions will not suffice. In response, the plaintiffs argue that the defendants’ motions have focused on segments of their pleadings in isolation and by doing so have lost the forest through the trees. They urge the Court to view the complaints “in their entirety” and argue that through this lens the pleadings easily satisfy Delaware’s notice pleading standards and the standard set by the Court in its April 3, 2006 ruling.

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IV.
When considering a motion to dismiss a complaint for failure to state a claim, whether based on the sufficiency of a complaint under Rules 8 and 9(b) or some other basis, the Court must accept as true all well-pled allegations in the complaint.[53] In this light, the Court must remember that “[t]he test for sufficiency is a broad one, that is, whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint.”[54]

In the motions sub judice, certain defendants once again have challenged the sufficiency of plaintiffs’ complaints under Rules 8 and 9. The arguments are familiar, as they have been made in this litigation before, and they implicate familiar standards of review. Nevertheless, it is appropriate to review the principles at the heart of these standards before applying them to the specific claims at issue here. While the rules are meant to be interpreted in accordance with the circumstances of the particular case in order to do justice,[55] the general principles that animate these rules offer guidance that cannot be ignored.

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A. Superior Court Civil Rule 8

The purpose of Rule 8(a) is to give the opposing party fair notice of the claim against him.[56] Rule 8(a) provides:

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross claim or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the party deems itself entitled. Relief in the alternative or of several different types may be demanded.[57]

This section must be read in conjunction with sections (e)(1) and (f) which require that the pleading “be simple, concise and direct” and that “[a]ll pleadings shall be so construed as to do substantial justice.”[58] “To show entitlement of relief as required in Rule 8(a), the complaint must aver either the necessary elements of a cause of action or facts which would entitle the plaintiff to relief under the theory alleged.”[59] But, as then Judge Terry recognized in one of the first decisions to interpret Delaware’s newly adopted Rule 8: “the pleader is not required in a statement of claim

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to narrate facts sufficient to constitute a cause of action, nor is he required to spell out the definite verbiage of the wrongs complained of if the missing elements, or element, follow, or may reasonably be inferred from the facts that are alleged.”[60] The Court must view the complaint as an integrated document — all of the allegations must be considered when determining whether the complaint provides fair notice of the claims.[61]

Simply stated, “notice pleading” standards set boundaries that are appropriate for the stage of the litigation at which they are applied. Defendants must be given fair notice of the claims against them at the outset of the litigation before they can thoughtfully respond to the allegations and map out their defense. On the other hand, as they initiate the case, plaintiffs need not be concerned that they will be drawn into lengthy “battles” over the form of their statement of the claim, or that they will be expected to plead all of the facts of the claim that discovery may later reveal.[62] As in

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most instances, the law attempts to strike a balance: Rule 8 encourages brevity, but not at the expense of fair notice.

B. Superior Court Civil Rule 9(b)

The particularity requirement embodied in Rule 9(b) operates to: (1) provide defendants with enough notice to prepare a defense; (2) prevent plaintiffs from using complaints as fishing expeditions to unearth wrongs to which they had no prior knowledge; and (3) preserve a defendant’s reputation and goodwill against baseless claims.[63] Rule 9(b) states, “In all averments of fraud, negligence or mistake, the circumstances constituting fraud, negligence or mistake shall be stated with particularity.”[64] As stated, Rule 9(b) and Rule 8 must be read together because the degree of particularity required in a negligence case varies depending upon “the complexity of the matter, the span of time involved, and the information available to

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the responding party.”[65] When pleading negligence, the plaintiff must “allege only sufficient facts out of which a duty is implied and a general averment of failure to discharge that duty.”[66]

V.
As stated, the general pleading standards set forth above are, by their nature, fluid. Delaware courts consistently have recognized that the sufficiency of a pleading under Rules 8 and 9(b) must be measured according to the particular circumstances of the case.[67] By necessity, then, the Court must engage in a case-by-case analysis that will differ depending upon the nature of the claim and the factual context in which it is made.

A. Rules 8 and 9 As Applied In Products Liability Cases

“Products liability cases pose the unique issue of whether a product is defective, as there can be no valid products liability claim without proof of the

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presence of a defective product.”[68] This is so “whether the action is based on negligence, strict liability, or breach of warranty of fitness.”[69] It is not surprising, then, that courts generally require plaintiffs, at a minimum, to plead facts that will identify the allegedly defective product and the manufacturer of that product, in addition to the other basic elements of the specific claims alleged in the complaint.[70] When the facts giving rise to the complaint do not themselves suggest the nature of the product defect, it is also incumbent upon the plaintiff to plead “the nature of the defect, the specific cause of the defect, the duty owed by [the] defendant to [the plaintiff], the breach of the duty by defendant and the damages resulting from the breach.”[71]

The typical products liability case will not pose a challenging pleading burden to the plaintiff, at least as far as product identification is concerned. In most

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instances, a plaintiff knowingly has encountered a particular product under circumstances that allow the plaintiff later to identify the product with some particularity. For instance, the plaintiff uses a power tool and, in the course of doing so, is injured as a proximate result of an alleged product defect. While the plaintiff may not be able to identify the product by name or model number, he typically is able to offer a sufficient description of the product to provide fair notice to the defendant(s) of the product at issue. As a practical matter, the fact that the plaintiff suffered an acute injury while using the product creates a dynamic that allows for a more ready, accurate and contemporaneous identification of the product. Under these circumstances, it is right to expect that the plaintiff will provide that identification in a complaint alleging the product was defective.

B. Rules 8 and 9 As Applied In Toxic Torts Cases

“Although hazardous substance litigation is a species of products liability, the cases present difficult and unusual problems of their own, due to the nature of the substances which have resulted in the injury or the unique nature of the incident giving rise to exposure to the hazardous substance.”[72] Among the unique difficulties presented in toxic tort litigation is the well-recognized phenomenon whereby plaintiffs who were unwittingly exposed to the hazardous substance years before any

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injury is manifested are unable, years later, to identify the product(s) and/or the manufacturer(s) of the product(s) to which they were exposed.[73] These circumstances must be considered at the pleading stage of the litigation and may justify some departure from the pleading standards that have emerged in more typical products liability actions.

Here again, the Court is confronted by competing interests and considerations. On the one hand, the Court must be mindful of the difficulties facing a plaintiff who is trying to reconstruct events that occurred years before and which were, at the time, likely of little significance to him because he did not appreciate the potential danger he was facing.[74] On the other hand, defendants also must attempt to recreate these events in order to identify the products or premises at issue and begin to prepare their

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defense.[75] These defendants must be given fair notice of the claims, including the products that are alleged to be defective and some well-directed sense of time, locations, and general circumstances of the exposure.[76]

There are several compelling reasons to require a plaintiff meaningfully to identify the product or premises at issue and the time and place of exposure. First, in toxic tort cases, plaintiffs typically name multiple defendants. These defendants are entitled at the pleading stage to isolate the wrong they are alleged to have committed, and to distinguish their behavior, if appropriate in the facts, from the behavior of the other defendants.[77] Second, product defendants must be able to

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ascertain whether other entities — e.g., component part manufacturers, designers, distributors — should be brought into the litigation as third-party defendants.[78] This can only occur after the defendants are advised of the specific product(s) at issue, and the time frame of the alleged exposure. Finally, defendants must be able to evaluate the condition and composition of the products and/or premises at issue at the time of alleged exposure and compare these conditions to those that have existed at other relevant time frames (such as the time of manufacture or the time control of premises is ceded over to a third party) in order, inter alia, to determine if others may be liable for subsequent alterations to the product or the premises.[79]

At oral argument, plaintiffs’ counsel posed the rhetorical question “whether or not the purpose of the complaint is to particularly identify the products that need to be focused on or whether to give a category so that we can [move on to discovery.]”[80] Although perhaps more tempting in the toxic tort context, courts must resist

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invitations to avoid early scrutiny of pleadings amidst promises that discovery will put flesh on the bare bones of a complaint. “Protracted discovery and extensive motion practice to ferret out those defendants who are not implicated in a given [controversy]” are not acceptable substitutes for proper pleading.[81]

The Court attempted to strike a balance between the competing interests when it issued its oral ruling on April 3, 2006. Toxic tort plaintiffs usually cannot identify the products by brand name or the premises by address, nor should they be expected to do so. But, by virtue of the fact that they cannot provide the kind of product or premises identification typically provided in a products or premises liability action, plaintiffs must attempt to draw a picture for these defendants by pleading factual circumstances that may not otherwise be required.[82] By necessity, this effort will require the plaintiffs to plead more facts to make the point that they could make more succinctly if they possessed a specific product name or a specific property location.

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Thus, notwithstanding Rule 8’s endorsement of “concise and direct” pleadings, in a toxic tort case, plaintiffs may well be required to plead more than they would plead in a typical products liability complaint in order to achieve the same result: a concise statement that provides the defendants with fair notice of the claim(s) including the identity of product and/or premises at issue.

1. Claims Against Product Defendants

With respect to claims against product defendants, when a plaintiff is unable specifically to identify the product at issue, it is reasonable to expect the plaintiff to identify a class of products within which the allegedly defective product fits. In the benzene litigation, the allegedly defective products all seem to take a liquid form of one sort or another. Vague descriptions such as “liquid,” “fluid,” “solvent,” “fuel,” “cleaner” or “lubricant,” without more, do not provide fair notice of the product at issue. These descriptions, however, when coupled with a meaningful explanation of the location and manner in which the product was used, will begin to draw a picture from which the defendants can ascertain which of their products are involved in the

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litigation.[83] The picture is further enhanced when the plaintiff provides a meaningful time frame within which he was exposed to the allegedly defective product. In this regard, plaintiffs’ pre-filing due diligence must narrow the time frame to no more than a span of years, not decades.[84] While this narrowing process, at times, may be difficult, defendants should not bear the burden of pouring through their inventory of products over many years, with little guidance from the plaintiffs, in order to track down potentially relevant products, particularly given that the benzene litigation is in its relative infancy with little institutional history upon which the parties may rely to narrow the products potentially at issue.[85]

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Distilled from this discussion are three elements that will allow a plaintiff adequately to identify an allegedly defective benzene-containing product when the plaintiff is unable to identify the product by name: (1) a description of the product classification, e.g., cleaner, solvent, fuel, lubricant, etc.; (2) qualified by a meaningful description of the location and manner in which the product was used by the plaintiff or observed to be used by others; and (3) a description of the time frame, reasonably narrowed by due diligence, within which the alleged exposure occurred.

2. Claims Against Premises Defendants

As a general proposition, a defendant will not be held liable for injuries that occur on real property unless the defendant owns, possesses or otherwise exercises actual control of the premises.[86]
Thus, as a predicate matter, a plaintiff must identify the premises involved in the claim with sufficient particularity to give fair notice to the premises defendant of the location of the premises at issue. Only then can that defendant ascertain whether there is a basis in the law to hold it accountable for events occurring on the premises. In the toxic tort context, however, plaintiffs making claims against premises defendants face obstacles similar to those they face when constructing their claims against products defendants — their claims are based on events that occurred years before they file their complaints at a time when they

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arguably had no reason to take particular note of their surroundings. When a plaintiff slips, falls and is injured on ice in a shopping center parking lot, that plaintiff can take note of the particular conditions of the premises at the time of the fall and can determine the specific address of the property prior to litigating his premises liability claim. Not so in the case of unwitting exposure to a hazardous condition while on a property when that exposure does not give rise to symptoms until years later. Here again, plaintiff may be left to identify the premises by describing its surroundings or by placing it within a targeted geographic region.

When a plaintiff is unable to pinpoint the location of the premises at issue, the circumstances of a given case will dictate the degree of particularity with which he must, by descriptive means, identify the premises when making out his premises liability claim. Nevertheless, regardless of the means used, the pleading must leave the premises defendant with fair notice of the premises at issue. Thus, it is safe to say that a description that identifies a property within a region of the country, e.g., “the southeast region,” or “the midwest region,” without more, likely will be inadequate

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to allow a premises defendant to determine the premises at issue.[87]
On the other hand, a pleading which identifies a property within a city, county, or territory within a state likely would be adequate to allow the defendant to identify the location of the premises at issue.[88]

In addition to location, plaintiffs might also describe the types of facilities on the property and/or the activity that was occurring on the property at the time of exposure. And, again, the plaintiff should not hold back the details. Identifying a facility as a “manufacturing facility” may or may not be adequate. Identifying the facility as an “automobile manufacturing facility,” however, undoubtedly would provide fair notice of the type of facility involved and, by doing so, draw a clearer picture of the premises at issue. Stating that a plaintiff “worked as a laborer” while

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on the premises likely would not be adequate. Stating that the plaintiff “worked as a laborer repairing oil rigs” while on the premises, however, probably describes the plaintiff’s activity on the property in a manner that would help to complete the picture the plaintiff must draw for the defendant to identify the premises at issue.

To summarize, a plaintiff may identify the premises at issue by: (1) describing its location with the degree of precision dictated by the circumstances of the claim; (2) the type of facility located on the premises and a description of the toxic substances used there; and (3) the activity on the premises that gave rise to the exposure.

C. The Fifth Hamill Complaint

The premises liability allegations against the Chevron defendants, the Conoco defendants, Occidental and Sunoco appear in paragraph four of the Fifth Hamill Complaint. It is alleged that Mr. Hamill “was exposed to various benzene containing products including but not limited to gasoline, diesel fuels, oils, lubricants, penetrating oils, cleaning solvents and crude oil and crude oil by-products” while working “in various capacities including but not limited to heavy equipment operator and doing general vehicle and equipment maintenance and repair at various oil fields owned, operated and/or leased” by each of the moving defendants “from 1979 to

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1985.”[89] Later, it is alleged that Mr. Hamill “was exposed to various benzene containing products including but not limited to gasoline, diesel fuels, oils, lubricants, penetrating oils, cleaning solvents and crude oil and crude oil by-products” while “working in various capacities ranging from supervisor to heavy equipment operator at various oil fields owned, operated and/or leased” by each of the moving defendants “from 1985 to 1996.”[90] Finally, it is alleged that Mr. Hamill was exposed to “various benzene containing products [including those described above]” while working “as a heavy equipment operator on various oil fields owned operated and/or leased” by each of the moving defendants “from 1998 to 1999.”[91]

None of the allegations in paragraph 4 state or otherwise describe where the “various oil fields owned, operated and/or leased” by the moving defendants are located. Nothing in the description of the time frame of exposure or the nature of Mr. Hamill’s work on the sites provides any indication as to the location of Mr. Hamill’s exposure to benzene while on property controlled by these defendants. Consequently,

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without more, the Court would readily conclude that the Fifth Amended Complaint had failed adequately to identify the premises at issue.[92]

Plaintiffs have urged the Court not to consider the allegations against specific defendants in a vacuum, but rather to consider the pleading as a whole. In doing so, the Court notes that paragraph 3(c) alleges that from 1979 to 1985 Mr. Hamill worked for a company based in Garden City, Kansas that provided services “at various oil field sites in Southwestern Kansas, Panhandle Oklahoma area and Eastern Colorado.” At paragraph 3(d), he alleges that he worked for another Garden City, Kansas-based employer at these same oil field sites “from 1985 to 1996.” Paragraph 3(e) identifies another employer (a drilling company) and describes Mr. Hamill’s work repairing vehicles and equipment at sites in Southwestern Kansas “from 1996 to 1997.” And paragraph 3(f) describes work for yet another Garden City, Kansas employer at “various old field sites in Southwestern Kansas, Panhandle Oklahoma area, and Eastern Colorado from 1998 to 1999.” Paragraph 3 further describes the benzenecontaining products to which Mr. Hamill was exposed at these various sites, including, but not limited to, “cleaning solvents, paints, thinners, reducers, hardeners

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and WD-40 lubricants and penetrating oils,” in addition to the other products described in paragraph 4.

After reviewing the Fifth Hamill Complaint, the Court has no doubt that Mr. Hamill could have identified the location of each of the moving defendants’ “various oil fields” with more precision, even as among the regions identified in paragraph 3. Nevertheless, after five tries, the Court is satisfied that Mr. and Mrs. Hamill’s latest offering provides fair notice of the premises at issue, and the nature of Mr. Hamill’s exposure to benzene while on these premises, in compliance with both Rule 8 and Rule 9. When read in a light most favorable to the plaintiffs, the pleading alleges that Mr. Hamill was injured by exposure to benzene while working on the moving defendants’ oil fields in Southwestern Kansas, the Panhandle of Oklahoma, and Eastern Colorado. Mr. Hamill has described the nature of his work on these oil fields and the types of benzene-containing products to which he was exposed. He has also identified each of his employers and has stated the time frames in which these employers provided services on the defendants’ premises. A search of company records for references to Mr. Hamill’s various employers and the locations where these firms provided services to the defendants will likely further narrow the scope of potential sites.

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For now, the allegations in paragraphs 3 and 4 are adequate to allow the moving defendants to isolate those geographic areas identified in the Fifth Hamill Complaint, survey their facilities within those areas during the time frames alleged in order to locate the premises at issue, and begin preparation of the defense.[93] The discovery process likely will fill in the blanks.[94] If not, summary judgment is available to any premises defendant who can establish without dispute that plaintiffs have failed to link Mr. Hamill’s alleged benzene exposure to that defendant’s premises.

D. The Second Heddinger Complaint

Five defendants have moved to dismiss the Second Heddinger Complaint — one premises defendant and four product defendants. The Court will address the motions seriatim in the order of the claims as they appear in the pleading.

1. McClatchy

McClatchy is a premises defendant. At paragraph 5(a), Mrs. Heddinger alleges that Mr. Heddinger “was exposed to benzene-containing product (sic)” while working as “an assembler/repairer of printing presses at the McClatchy Company located at/in

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Sacramento, California from 1967 to 1996.”[95] At paragraph 4(a), Mrs. Heddinger identifies her husband’s employer from 1967 to 1996, and also identifies more specifically the types of benzene-containing products to which he was exposed while assembling and repairing printing presses, including cleaners, thinners, liquid wrench, and WD-40.

The Second Heddinger Complaint more than adequately states a claim against McClatchey. The pleading identifies the premises at issue by city, identifies what Mr. Heddinger was doing on the premises and when he was doing it, and identifies generally the benzene-containing products to which he was exposed while working at the site. McClatchy knows who Mr. Heddinger was working for when he repaired printing presses at McClatchy’s Sacramento, California site and can search its records for references to the employer (Rockwell Goss) in order to ascertain more information regarding Mr. Heddinger’s activities while on their premises. Fair notice has been given by facts pled with particularity.

2. Barton

At paragraph 6(b), Mrs. Heddinger alleges that “from 1967 to 1996” her husband was exposed to benzene-containing “cleaners and solvents” “manufactured, sold, supplied and/or distributed” by Barton while he was assembling and/or repairing

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printing presses. The same description of Barton’s product appears in paragraph 4(a).

The Court already has held that plaintiffs in the benzene litigation must plead “particular product classes” and identify how these products were used as “observed by the plaintiffs” in order to allow the product defendants to determine which of their products are at issue.[96]
Within its four corners, the Second Heddinger Complaint refers only to Barton “cleaners and solvents” used by Mr. Heddinger over a period of nearly thirty years. Not only are these references to “product classes” too vague to be meaningful (“solvents,” by definition, encompass multiple products classes),[97] the twenty nine year time frame within which Mr. Heddinger allegedly used these products does not allow Barton to narrow the potential products to which there was exposure by searching its product inventory at a given point in time. The pleading does not make up for these “broad brushed” allegations by providing a meaningful explanation of the manner in which the products were used. There is nothing to describe how “solvents or cleaners” were used while Mr. Heddinger “assembled and/or repaired” printing presses that might allow Barton to piece together which of its products may have been involved in the process. Fair notice of the product(s) at issue has not been given to Barton.

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3. Behr

At paragraph 6(c), Mrs. Heddinger alleges that “from the mid 1970’s to 1978” her husband was exposed to Behr’s “sealers and finishes” while “refinishing furniture” for recreational purposes. Given the specific description of the manner in which Mr. Heddinger used a focused class of products, and the limited time frame of alleged exposure, the Court concludes that plaintiffs have provided enough information to allow Behr to inventory its products, narrow the product(s) at issue, develop a defense and propound discovery.

4. Chrysler

The allegations against Chrysler appear in paragraph 6(g). There, Mrs. Heddinger alleges that from 1957 to 1964 while working “as a mechanic” her husband was exposed to benzene-containing “fluids” “manufactured, sold, supplied and/or supplied” by Chrysler. No further description of Chrysler’s allegedly defected product appears anywhere else in the Second Heddinger Complaint. Mrs. Heddinger’s chosen designation of a product class provides little more notice than had she designated the product as one of the four basic elements of physical matter (earth, air, fire and water). At oral argument, plaintiff’s counsel suggested that Chrysler readily could infer that the products at issue were “automotive fluids.” Even

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this description falls far short of providing “fair notice” of the allegedly defective product.[98]
5. 3M

The Second Heddinger Complaint also fails to state a claim against 3M. Paragraph 6(p) refers to “adhesives” Mr. Heddinger used “as a mechanic” from “1957 to 1964,” but fails to specify what kind of “adhesives” or how specifically they were used by Mr. Heddinger or observed to be used by others.[99] No other allegations in the pleading fill in these blanks. The fact that the exposure to 3M’s “adhesives” is alleged to have occurred over a period of seven years only compounds the problem. The allegations against 3M are insufficient to provide fair notice and fail for lack of particularity.

E. Leave To Amend The Heddinger Complaint

The Court must confess to some level of frustration regarding the extent to which the Second Heddinger Complaint falls short of the mark the Court attempted to set in its prior ruling on motions to dismiss in this litigation. It apparently took five tries for Mr. and Mrs. Hamill to get it right. It is significant, though, that they did get it right this time. It can be done.

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The Court has gone to some length here to expand on its earlier ruling with the intent that this decision will mark a cross roads in this litigation. Delaware courts take pains to encourage the disposition of disputes on the merits, and interpret the rule governing amendments to pleadings liberally with that goal in mind.[100] The bar has been set and Mrs. Heddinger will be given an opportunity to reach it in an amended pleading. The Court will assume that she has given her best effort in her next attempt. It is highly unlikely that leave to amend will be given again.

VI.
The Court has determined that the Fifth Hamill Complaint complies with Superior Court Civil Rules 8 and 9(b) in that it sufficiently identifies the premises at issue and further identifies factual bases upon which claims of premises liability can rest. The motions to dismiss the Fifth Hamill Complaint are DENIED.

The Second Heddinger Complaint adequately pleads claims against some defendants, but not against others. Specifically, the claim against McClatchy adequately identifies the premises at issue and the facts regarding Mr. Heddinger’s exposure to benzene while on that premises. McClatchy’s motion to dismiss is DENIED. Likewise, the allegations against Behr adequately identify the allegedly

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defective products at issue and the manner in which they caused injury to Mr. Heddinger. Behr’s motion to dismiss must, therefore, beDENIED. The Second Heddinger Complaint does not, however, adequately identify the products, location and duration of exposure with respect to Mr. Heddinger’s claims against Barton, Chrysler, or 3M. Consequently, as to those defendants, the motions to dismiss are

GRANTED with leave to amend.
IT IS SO ORDERED.

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