Opinion
No. 03-03500
December 4, 2003
MEMORANDUM AND ORDER
Currently before the Court are Defendant Pilgrim's Pride Corporation's Motion to Dismiss (Docket No. 9) and Plaintiffs' Response to Motion to Dismiss (Docket No. 10).
I. BACKGROUND
This case arises out of the injuries allegedly sustained by Plaintiffs Shakandra Hampton and her son, Laron Harvey, while Hampton was pregnant with Harvey. The Complaint alleges that during the pregnancy, Hampton consumed meat products contaminated with listeria. The meat was allegedly cooked, distributed, marketed, packaged, and sold by the Defendants Pilgrim's Pride Corporation and Jack Lambersky Poultry Company.
The Complaint sets forth that in August 2002, Hampton, while pregnant with her son, purchased and ate the allegedly tainted meat. On August 19, 2002, Harvey was born nine weeks early, as a direct result of listeria allegedly contracted by Hampton from the Defendants' products. Plaintiffs allege the strains of listeria that infected them can be traced to matching strains found in the Defendants' products. Hampton allegedly suffered severe injuries, including severe emotional and psychological distress, as a result of the incident. Harvey also allegedly suffered severe injuries due to his exposure to listeria and his resulting premature birth.
Plaintiffs set forth eighteen separate counts in the Complaint, nine of which are against Defendant Pilgrim's Pride. In the instant motion, Pilgrim's Pride moves to dismiss only Counts One and Two, which plead causes of action for gross negligence, and Count Nine, which pleads a cause of action for negligent infliction of emotional distress.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the complaint. See Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993). When considering a 12(b)(6) motion, the Court must accept as true all facts alleged in the complaint and any reasonable inferences that can be drawn from them. See, e.g., H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989);Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001); Lake v. Arnold, 232 F.3d 360, 365 (3d Cir. 2000). The motion should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conlev v. Gibson, 355 U.S. 41, 45-46 (1957). The fact that a Court must assume as true all facts alleged, however, does not mean that the Court must accept as true "unsupported conclusions and unwarranted inferences." Schuylkill Energy Res., Inc. v. Pennsylvania Power and Light Co., 113 F.3d 405, 417 (3d Cir. 1997).
III. DISCUSSION
A. Counts One and Two: Gross Negligence
In Counts One and Two, Harvey and Hampton, respectively, allege causes of action against Pilgrim's Pride for "Gross Negligence/Recklessness/Willful and Wanton Conduct — Punitive Damages." Pilgrim's Pride moves to dismiss these counts because Pennsylvania courts do not recognize "gross negligence" as a cause of action, and because Plaintiffs already state causes of action for ordinary negligence in Counts Two and Three.
Under Pennsylvania law there is indeed no distinction among varying degrees of negligence. See Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459, 462 (3d Cir. 1990); Ferrick Excavating and Grading Co. v. Senger Trucking Co., 506 Pa. 181, 191 (1984). The term "gross negligence" refers only to a heightened standard of care, not a cause of action distinct from ordinary negligence.See Jordan v. City of Phila., 66 F. Supp.2d 638, 644-45 (E.D. Pa. 1999). Therefore, Defendant's Motion to Dismiss Counts One and Two is granted to the extent those Counts state causes of action for gross negligence. B. Count Nine: Negligent Infliction of Emotional Distress
Counts One and Two also set forth claims for punitive damages. Under Pennsylvania law, pleading negligence or even gross negligence is not sufficient for a punitive damages claim to survive a motion to dismiss. See, e.g., Walker v. May Dep't Stores Co., 83 F. Supp.2d 525, 529 (E.D. Pa. 2000) (citing Rizzo v. Haines, 520 Pa. 484 (1989); Trotman v. Mecchella, 421 Pa. Super. 620 (1992)). However, courts interpreting Pennsylvania law have refused to dismiss claims for punitive damages alleging "willful and wanton conduct." See, e.g., Estate of Aptekman v. City of Phila., 2001 U.S. Dist. LEXIS 19120, *10-11 (Nov. 21, E.D. Pa.) (citing Medvecz v. Choi, 569 F.2d 1221, 1226 (3d Cir. 1977);Chambers v. Montgomery, 411 Pa. 339 (1963)). In the Complaint, Counts One and Two allege the Defendant acted with gross negligence, recklessness, or willful and wanton conduct by allowing its products to become contaminated with listeria. Thus, although the Court grants Defendant's Motion to Dismiss Counts One and Two of the Complaint as far as those Counts set forth causes of action for gross negligence, this Order does not disturb Plaintiffs' claims for punitive damages.
In Count Nine, Hampton sets forth a claim for negligent infliction of emotional distress ("NIED"). The issue presented in Defendant's Motion to Dismiss is whether a plaintiff who suffers severe emotional distress from witnessing the premature birth of her son states a claim for NIED, where the cause of the premature birth allegedly occurred about twenty days earlier, when plaintiff consumed the defendant's products.
In Pennsylvania, a claim for negligent infliction of emotional distress must be addressed in terms of reasonable foreseeability. See Sinn v. Burd, 486 Pa. 146, 170-71 (1979); Turner v. Medical Center, 454 Pa. Super. 645, 650 (1996). A court must inquire whether the emotional injuries sustained by the plaintiff were reasonably foreseeable to the defendant. See Sinn, 486 Pa. at 169-170;Mazzagatti v. Everingham, 512 Pa. 266, 275-76 (1986);Turner, 454 Pa. Super. at 650. To determine whether the injuries alleged are foreseeable, the Pennsylvania Supreme Court has adopted a three part inquiry. A plaintiff may recover for negligent infliction of emotional distress where she: (1) was at or near the scene of an accident; (2) suffered an emotional shock as a result of her contemporaneous observation of the accident; and (3) was closely related to the victim of the accident. See Sinn, 486 Pa. at 170-71 (adopting parameters of Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912 (1968)); Mazzagatti, 512 Pa. at 276; Carpino v. United States, No. 02-9522, 2003 U.S. Dist. LEXIS 8036, *3-4 (E.D. Pa. May 13). This test has been refined to require that the severe emotional distress to the plaintiff "result[ed] from the direct and contemporaneous observance of the accident or conduct." See Mazzagatti, 512 Pa. at 278 (citations omitted).
The "contemporaneous observance" requirement is intended to help distinguish those plaintiffs who suffer severe emotional distress as a direct and foreseeable result of the defendant's negligence from those plaintiffs who suffer feelings of anguish and grief caused by an injury to a loved one. See Mazzagatti, 512 Pa. at 280. The Pennsylvania Supreme Court has been explicit in its policy not to extend this area of tort recovery and allow damages for a plaintiff's grief.See id.; Sinn, 486 Pa. at 151-52 n. 3. For example, the courts in Mazzagatti and Sinn held that a mother whose son is killed by a negligent driver cannot recover damages for her emotional distress unless she actually witnessed the automobile accident.
The Supreme Court of Pennsylvania has held, however, that the policy of not allowing recovery for unforeseeable grief is not implicated where parents suffer emotional distress following the birth of a genetically defective child. See Speck v. Feingold, 497 Pa. 77, 83-86 (1981) (allowing parents' claim for emotional distress in a "wrongful birth" case to reach jury). In Speck, the Court held that mental distress resulting from "the birth of an unplanned, unwanted, genetically defective child" is foreseeable, when the birth itself was caused by the defendant doctor's negligently performed vasectomy.See id. Consequently, mental distress damages were recoverable even though the vasectomy, the negligent act, preceded the event triggering the emotional distress, the birth of a defective child.
With those standards in mind, the Court turns to the instant motion. Pilgrim's Pride argues that Shakandra cannot recover under an NIED claim because she fails the "contemporaneous observance" requirement, having observed only the premature birth of her son, and not the traumatic infliction of harm. Shakandra did not and could not have witnessed the infliction of harm, Defendant argues, because the harm occurred in utero after Shakandra ate the contaminated meat. The Court disagrees.
Under Pennsylvania law, Shakandra Hampton's emotional distress deriving from the premature birth of her child was a foreseeable result of the Defendant's alleged negligence. The Complaint avers Pilgrim's Pride knew that a common adverse reaction from listeria poisoning is premature birth. The fact that the infliction of harm preceded the premature birth, preventing "contemporaneous observance," is not dispositive under the circumstances of this case. Pennsylvania courts have held that the birth itself is sufficient to support a claim for emotional distress. See Speck, 497 Pa. at 83-86; Turner v. The Medical Center, 454 Pa. Super. 645, 652 (1996) (suggesting that the child delivery itself is the traumatic event in an NIED claim, not the negligent act that preceded it). Therefore, dismissing Plaintiff's NIED claim is inappropriate. Defendant Pilgrim's Pride motion to dismiss Count Nine is denied.
An appropriate Order follows.
ORDER
AND NOW, this ___ day of December, 2003, upon consideration of Defendant Pilgrim's Pride Corporation's Motion to Dismiss (Docket No. 9) and Plaintiffs' Response to Motion to Dismiss (Docket No. 10), and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that:(1) Defendant's Motion to Dismiss Counts One and Two of the Complaint to the extent those Counts plead causes of action for gross negligence is GRANTED; and
(2) Defendant's Motion to Dismiss Count Nine of the Complaint, a claim for negligent infliction of emotional distress, is DENIED.