State of Delaware
Jan R. Jurden
New Castle County Courthouse
500 North King Street, Suite 10400
Wilmington, Delaware 19801-3733
Telephone (302) 255-0665
Date Submitted: July 30, 2010
Date Decided: August 5, 2010
Ian C. Bifferato, Esq.
800 N. King Street
Wilmington, DE 19801
C. Scott Reese, Esq.
Cooch & Taylor PA
1000 West Street, 10th Floor
P.O. Box 1680
Wilmington, DE 19899-1680
Codi Garcia, Trevor Garcia, Michael Garcia, and Lori Rippe
Signetics Corporation, NXP Semiconductors USA, Inc., Philips Electronics North
America Corporation, and Philips Semiconductors, USA, Inc.
C.A. No. 09C-10-032
Upon Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint
Under Rules 8(a), 9(b), and 12(e): DENIED
In follow up to the July 30, 2010 oral argument on Defendants’ “Motion to Dismiss
Plaintiffs’ Second Amended Complaint under Rules 8(a), 9(b), and 12(e)” (the “Motion”), the
Court has again reviewed the Second Amended Complaint (“SAC”), the briefing, and the
applicable case law. Defendants believe that this third attempt at pleading still fails to meet the
requirements of 8(a) and 9(b), and ask this Court to apply the “three strikes and you’re out” rule
to the Plaintiffs, 1 or alternatively, to require them to try once again to meet their pleading
requirements. For the reasons that follow, the Court finds that the SAC satisfies the pleading
Defendants cite no authority for the argument that the SAC should be dismissed because this is the third attempt.
The Court knows of no rule that limits a plaintiff to three attempts to state a claim for relief. Therefore, the Motion
to Dismiss on that basis is denied.
requirements of 8(a) and 9(b) and states a claim for relief. Super. Ct. Civ. R.8(a) states:
Claims for relief. 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
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.” 2 The purpose of Rule 8(a) is to give the opposing party fair notice of the
claim against it. 3 As aptly noted by Judge Slights:
“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. 4
Super. Ct. Civ. R. 9(b) provides, in pertinent part:
In all averments of fraud, negligence or mistake, the circumstances
constituting fraud, negligence or mistake shall be stated with
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. 5
This Court has consistently
recognized that “the sufficiency of a pleading under Rules 8(a) and 9(b) must be measured
In re Benzene Litig., 2007 WL 625054, at *5 (Del. Super. Feb. 26, 2007).
Id. at *6.
according to the particular circumstances of the case. 6
This Court has also consistently
recognized that toxic tort litigation presents “unique difficulties” in pleading because often
plaintiffs in such cases are unwittingly exposed to the alleged toxin years before any injury
manifests, and unable to identify the products or manufacturers because of the lapse of time. 7
The Court should consider these particular difficulties at the pleading stage and recognize that
they “may justify some departure from the pleading standards that have emerged in more typical
product liability actions.” 8 Applying these pleading standards to the SAC, the Court is not
persuaded that the Defendants require more specificity from the Plaintiffs to prepare a defense to
the claims pled by the Plaintiffs.
The SAC puts Defendants on notice that from approximately 1982 until 1986, plaintiff
Michael Garcia was employed by defendants at their semiconductor plant in Albuquerque, New
Mexico. 9 During that time, he worked in “clean rooms” and on the assembly line, among other
places in the plant, where semiconductor wafers, microchips and boards were manufactured. 10
While working in the clean rooms, on the assembly line and/or other locations inside that plant,
Mr. Garcia claims he was exposed to hazardous toxic chemicals and substances (hereinafter
“substances”) utilized in the manufacture of the semiconductors. 11 The SAC puts Defendants on
notice of the toxic substances at issue. These include, but are not limited to:
ethylene glycol ethers; propoylene glycol ethers; positive
photoresist systems and their respective ingredients over and above
ethylene and propylene-based glycol ethers, specifically including
the solvents; xylene; n-butyl acetate; n-methyl pyrrolidone, the
catalyst trihydroxy benzophenone (THBP) and the diazo
See SAC ¶14.
See SAC ¶¶16, 18.
See SAC ¶¶ 17, 18, 20, 21.
nepthoquinone (DNQ) resins; fluorine compounds used in various
etch processes such as ammonium fluoride, aluminum fluoride,
boron trifluoride and sulfur hexafluoride; radio frequency radiation
and ionizing radiation used both in association with clean rooms
process chemicals and for the purpose of generating new chemical
mixtures; arsenic compounds including gallium arsenide, cleaning
solvents trichloroethylene, methylene chloride, stabilized
trichoroethane, and organic solvents toluene, acetone, methyl ethyl
ketone, and epoxy resin-based glues made from epichlorohydrin
and bisphenol. 12
Defendants are on notice that Plaintiffs intend to prove that exposure to these substances
proximately caused damage to Mr. Garcia’s reproductive system, 13 and, as a proximate result of
that damage, Mr. Garcia’s sons Codi and Trevor sustained bilateral retinal blastoma, blindness,
enucleation, physical pain and suffering, physical disabilities, mental anguish, earnings loss and
medical expenses. 14 Defendants are also on notice the Plaintiffs expect to prove that Defendants
willfully, recklessly and negligently: (1) failed and refused to warn or advise Mr. Garcia of the
dangers and health hazards of the substances; (2) failed to provide warnings and information of
the dangers and health hazards of the substances to Mr. Garcia and those who would reasonably
and foreseeably come into contact with or be harmed by them; (3) failed to study, investigate,
ascertain, impose or comply with reasonable standards and regulations to protect the health and
safety of, or minimize dangers to, those using or coming into contact with the substances; (4)
failed to fully and properly test and study the substances to fully learn of the hazards associated
with them; (5) failed to develop, make available, provide or promote substances that were free of
defect; and (6) failed to instruct on potentially safer methods of handling the substances. 15
Defendants are on notice that Plaintiffs intent to prove defendants breached their duty of care to
SAC ¶ 15.
SAC ¶ 37.
SAC ¶ 38.
SAC ¶¶ 42-47.
provide a reasonably safe premises. 16 Defendants are on notice that Plaintiffs intend to hold then
liable for the alleged defective, unsafe and unreasonably dangerous condition of Defendants’
substances in Defendants’ workplace. 17 Defendants are on notice that Plaintiffs intend to prove
they knew or should have known that their wrongful conduct exposed plaintiffs to an
“abnormally dangerous and ultra hazardous activity.” 18 Defendants are on notice that Plaintiffs
intend to prove that, but for Defendants’ wrongful conduct, Mr. Garcia would not have sustained
the damage to his reproductive system which, in turn, caused the injuries to his sons. 19
Notwithstanding the notice described above, Defendants challenge each claim asserted by
the Plaintiffs and claim that none of the claims meets the notice or pleading requirements. 20
Defendants rely heavily on Judge Slights’ opinion in the Benzene case, yet Benzene seems far
more supportive of Plaintiffs’ position in this case. Plaintiffs are required to identify the product
class with a description of the location and manner in which the product was used, a “meaningful
time frame,” and details sufficient to identify the premises where the exposure took place. 21
The Court finds that the SAC meets the pleading standard, and states claims for relief.
The Motion to Dismiss is therefore DENIED and the Motion for a More Definite Statement is
SAC ¶¶ 53-57.
SAC ¶¶ 58-60.
SAC ¶¶ 62-64.
SAC ¶¶ 32, 37-39.
Defendants argue that the particularity requirement of Rule 9(b) applies to the allegation that the Defendants
“wrongfully, knowingly, fraudulently and with intent to deceive, misrepresented to Plaintiff . . . that working in
cleanrooms and elsewhere in Defendants’ facilities was safe. . . .” SAC ¶ 29. While this allegation does not meet
the particularity requirement of 9(b) and Plaintiffs do not elsewhere supply the missing details, the Court notes that
Plaintiffs do not include a count for fraud or misrepresentation in the SAC. Since Defendants have not moved to
strike and Plaintiffs have not used this allegation for anything more than background, the Court fails to see the need
for a more definite statement.
See In re Benzene Litig., 2007 WL 625054, at *7-9.
IT IS SO ORDERED.
Jan R. Jurden, Judge
Prothonotary - Original