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MATTER OF JOHNS-MANVILLE/ASBESTOSIS CASES

March 31, 1981

IN THE MATTER OF JOHNS-MANVILLE/ASBESTOSIS CASES.


The opinion of the court was delivered by: Shadur, District Judge.

  MEMORANDUM OPINION AND ORDER

Johns-Manville Corporation, Johns-Manville Sales Corporation, Canadian Johns-Manville Asbestos, Ltd. and Canadian Johns-Manville Company, Ltd. (collectively "Johns-Manville") are among the defendants in the Johns-Manville/Asbestosis cases consolidated for pre-trial purposes. They have moved to dismiss various portions of plaintiffs' complaints.*fn1 For the reasons stated in this memorandum opinion and order Johns-Manville's motion to dismiss is granted in part and denied in part.

Count I — Strict Liability

Count I alleges that Johns-Manville is strictly liable for any injuries employees (plaintiffs or plaintiffs' decedents) suffered from inhaling asbestos because Johns-Manville knew that the product would cause injury or disease and failed adequately to warn the employees of such danger. Johns-Manville's motion to dismiss is based on an Illinois Supreme Court opinion, Woodill v. Parke Davis & Co., 79 Ill.2d 26, 37 Ill.Dec. 304, 402 N.E.2d 194 (1980), which held that an essential element of a tort action sounding in strict liability was an allegation that the defendant knew or should have known of the danger that the product could cause. However, Complaint ¶ 70 specifically makes such an allegation.

Johns-Manville's argument suffers from an even more basic defect exemplified by their memorandum's exclusive attention to Woodill, a state court decision. Matters of pleading in diversity cases (as distinct from substantive requirements of proof) are governed by the Federal Rules of Civil Procedure. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); 5 Wright and Miller, Federal Practice and Procedure: Civil § 1204. Under the principles of notice pleading a complaint stating a cause of action sounding in tort need contain nothing more than a short and plain statement of the basis for the suit. See, Form 9 of the Fed.R.Civ.P. Appendix of Forms. Because the Complaint adequately meets the federal pleading requirements, Johns-Manville's motion to dismiss Count I is denied.

Count V — Fraudulent Misrepresentation

Count VI — Negligent Misrepresentation

Plaintiffs' allegations of negligent misrepresentation more than adequately meet the requirements of notice pleading under the Rules. Accordingly, for the same reasons already discussed, Johns-Manville's motion to dismiss Count VI is therefore denied.

Wilful and Wanton Conduct

Complaint ¶ 113 seeks punitive damages because defendants' actions described in all preceding Counts were allegedly wilful, wanton and intentional. Johns-Manville's arguments for dismissing that claim are of a like kind with, and flawed for the same reasons as, those already discussed. Accordingly Johns-Manville's motion to dismiss the claim in Paragraph 113 is also denied.

Effects of the Availability of Worker's Compensation

  1. General Tort Liability of Johns-Manville Sales Corporation
     ("Johns-Manville Sales")

Johns-Manville Sales moves for dismissal from all counts of the Complaint because it was or is the employer in every case. It contends that plaintiffs are limited to a worker's compensation remedy by ...


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