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
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 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 ...