Leo v. Kerr-McGee Chemical Corp.

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
9-16-1994
Leo v. Kerr-McGee Chem. Corp.
Precedential or Non-Precedential:
Docket 93-5730
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 93-5730
ELAINE LEO, Administratrix of the Estate of
CATHERINE M. BEKES, deceased, Administratrix Ad
Prosequendum on behalf of the Estate of THOMAS BEKES,
deceased, and individually; LINDA YODER, individually
v.
KERR-MCGEE CHEMICAL CORPORATION, a Delaware Corporation,
successor in interest to Welsbach Company and/or Welsbach
Incandescent Gas Light Co., Lindsay Chemical Co.,
American Potash and Chemical Corp. and American Potash,
an Illinois Corporation; U.G.I., f/k/a United Gas
Improvement Company, a Pennsylvania Corporation;
JOHN DOES 1-20; ROBERT ROES 1-20; JAMES JOES 1-20;
XYZ CORPORATION 1-20; RHEEM RUDD, a corporation
successor interest to City Investing Co., Rudd
Waterheater Division and Rudd Manufacturing Company
Kerr-McGee Chemical Corporation,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 93-01107)
Argued August 1, 1994
BEFORE: GREENBERG and STAPLETON, Circuit Judges,
and ATKINS, District Judge*
(Filed: September 19, 1994)
Thomas J. Hagner (argued)
Freeman, Mintz, Hagner &
Deiches
34 Tanner Street
Haddonfield, NJ 08033-2482
Attorneys for Appellee
* Honorable C. Clyde Atkins, Senior United States District Judge
for the Southern District of Florida, sitting by designation.
Peter J. Nickles (argued)
Coleman S. Hicks
Richard A. Meserve
Elliott Schulder
Caroline M. Brown
Covington & Burling
1201 Pennsylvania Ave., NW
P.O. Box 7566
Washington, DC 20044-7566
Attorneys for Appellant
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. FACTUAL AND PROCEDURAL HISTORY
This matter is before the court following entry of our
order on November 30, 1993, granting defendant-appellant Kerr-
McGee Chemical Corporation permission to appeal pursuant to 28
U.S.C. § 1292(b). We will reverse the order of the district
court denying Kerr-McGee's motion for summary judgment entered on
September 8, 1993, and we will remand the matter to the district
court for entry of a summary judgment in its favor.
The facts are largely not in dispute, and, in any
event, we accept the allegations of the plaintiffs-appellees
Elaine Leo and Linda Yoder for purposes of this appeal. From
prior to the turn of the 20th century continuing until 1940, the
Welsbach Incandescent Light Company maintained and operated a
factory in Gloucester City, New Jersey, for manufacturing
incandescent gas mantles, a process involving extracting thorium
from monazite ores. This process generated toxic wastes
consisting of thorium by-products which Welsbach deposited on the
factory site, thus contaminating the surrounding land. In 1940,
Welsbach's Illinois-based competitor, Lindsay Light and Chemical
Company, purchased Welsbach's gas mantle business. In the sale,
Lindsay acquired Welsbach's outstanding orders, records,
formulas, raw materials, inventory, customer lists, gas mantle
production line, and the right to use the "Welsbach" name.
However, Lindsay did not acquire the Gloucester City land and
factory. Rather, it moved the gas mantle business to its own
plant in Illinois.
Following a series of acquisitions, Kerr-McGee acquired
Lindsay, and it thus concedes that in this litigation it stands
in Lindsay's shoes. Accordingly, we will refer to Lindsay and
Kerr-McGee simply as Kerr-McGee. Welsbach owned a second line of
business which it sold to Rheem Manufacturing Company but Rheem's
successors, though originally defendants in this action, have
been dismissed from the case. Welsbach was dissolved in 1944.
In 1961, Leo and Yoder, who are sisters, and their
parents, Thomas and Catherine Bekes, moved to a home close to the
former site of the Welsbach factory in Gloucester City, though
Leo and Yoder now live elsewhere. On December 5, 1988, Thomas
Bekes died from bladder cancer. In March 1991, the New Jersey
Department of Environmental Protection notified Catherine Bekes
of the high levels of gamma radiation and thorium on her property
and on June 3, 1991, the New Jersey Spill Compensation Fund
acquired her residence, forcing her to relocate. Soon thereafter
she also died from bladder cancer. Leo and Yoder allege that
their parents contracted their bladder cancer from exposure to
thorium and other waste substances deposited on the Welsbach
land.
On January 29, 1993, Leo and Yoder filed suit,
individually, and on behalf of their parents' estates, in the
Superior Court of New Jersey against Kerr-McGee and certain other
defendants to recover for death, injuries, and the potential risk
of cancer arising from their exposure to thorium and other waste
substances generated in the Welsbach gas mantle operation and
deposited on the Gloucester City property. As germane here, Leo
and Yoder seek to impose liability on Kerr-McGee on a theory of
strict liability.1 While Leo and Yoder do not claim that Kerr-
McGee itself generated the waste which caused the deaths and
injuries, they assert that it is liable by reason of its
acquisition of Welsbach's gas mantle business. On March 4, 1993,
one of the other defendants removed the case to the United States
District Court for the District of New Jersey on the basis of
diversity of citizenship.
Subsequently, Kerr-McGee filed a motion to dismiss
under Fed. R. Civ. P. 12(b)(6) on the ground that the complaint
did not state a claim on which relief may be granted inasmuch as
1
. Leo and Yoder also set forth theories of liability predicated
on negligence and breach of warranty but we do not discuss them
as we find no support for liability on either theory and they do
not advance these theories on a basis distinct from the strict
liability claim.
Kerr-McGee never has owned the Gloucester City land and factory.
In its bench opinion the district court treated the motion as a
motion for summary judgment because it considered material other
than the complaint submitted on the motion. The court then
predicted that the New Jersey Supreme Court would extend the
product line doctrine of successor corporate liability, as
explicated in Ramirez v. Amsted Indus., Inc., 431 A.2d 811 (N.J.
1981), to the toxic tort at issue, because the toxic by-products
were generated directly from the manufacturing of Welsbach's gas
mantles.2 Thus, the court denied Kerr-McGee's motion by the
order of September 8, 1993. Kerr-McGee then moved for an
amendment of the order to allow an interlocutory appeal, and the
district court granted the amendment by an order entered on
November 1, 1993. We then granted Kerr-McGee leave to appeal.
II. DISCUSSION
We exercise plenary review as the appeal presents an
issue of law. Epstein Family Partnership v. Kmart Corp., 13 F.3d
2
. The court also relied on Nieves v. Bruno Sherman Corp., 431
A.2d 826 (N.J. 1981), decided on the same day as Ramirez. We,
however, have no need to discuss Nieves at length as it merely
held that an intermediate successor corporation could be liable
under Ramirez even though there is a later viable successor
corporation in existence. We note that actions similar to the
one in this case are sometimes called "environmental torts" and
sometimes called "toxic torts." As a matter of convenience, we
use the latter term as the Supreme Court of New Jersey used that
term in T & E Indus., Inc. v. Safety Light Corp., 587 A.2d 1249,
1251 (N.J. 1991). Labels, however, are not significant, as we
are concerned with the circumstances leading to the attempt to
impose liability on Kerr-McGee rather than the characterization
of the claim.
762, 765-66 (3d Cir. 1994). Furthermore, we will apply New
Jersey law as the parties agree that it is applicable. Thus, we
undertake to predict how the Supreme Court of New Jersey would
resolve the issues in this case. J & R Ice Cream Corp. v.
California Smoothie Licensing Corp., No. 93-5516, slip op. at 19-
21 (3d Cir. Aug. 4, 1994).
We start, of course, with Ramirez, 431 A.2d 811, in
which the Supreme Court of New Jersey held that:
where one corporation acquires all or
substantially all the manufacturing assets of
another corporation, even if exclusively for
cash, and undertakes essentially the same
manufacturing operation as the selling
corporation, the purchasing corporation is
strictly liable for the injuries caused by
defects in the units of the same product
line, even if previously manufactured and
distributed by the selling corporation or its
predecessor.
431 A.2d at 825. As the district court acknowledged, Ramirez is
distinguishable from this case. Unlike the injuries in Ramirez,
the injuries of Leo, Yoder, and their parents were not caused by
a unit in the product line manufactured first by Welsbach and
then by Kerr-McGee. Instead the injuries in this case were
caused by conditions created by Welsbach's operations on land
which Welsbach retained at the time of the sale of the gas mantle
business to Kerr-McGee and on which Kerr-McGee never conducted
any manufacturing activities. Therefore, we must determine
whether in light of these distinctions from Ramirez, the New
Jersey Supreme Court nevertheless would apply the result in
Ramirez to this case.3
The Ramirez court predicated its conclusion that the
successor corporation could be liable for injuries caused by its
predecessor's defective product on three rationales: (1) the
sale of the enterprise virtually destroyed the injured party's
remedy against the original manufacturer; (2) the successor has
the ability to assume the original manufacturer's risk-spreading
role; and (3) it is fair to require the successor to assume a
responsibility for defective products as that responsibility was
a burden necessarily attached to the original manufacturer's good
will being enjoyed by the successor in the continued operation of
the business. Id. at 820. Clearly these rationales do not
support the extension of successor liability to Kerr McGee in
this case.
The first factor, the destruction of the injured
party's remedy is a necessary but not a sufficient basis on which
to place liability on the successor.4 Accordingly, if the
3
. A corporate successor can be liable for its predecessor's
debts on theories other than that recognized in Ramirez. For
example, liability can be imposed on the successor if it assumes
the predecessor's liabilities or if the predecessor merges into
the successor. Ramirez, 431 A.2d at 815. But we confine our
opinion to the question of whether Kerr-McGee may be liable based
on the product-line doctrine of successor liability as that is
the only basis for liability that Leo and Yoder advance against
Kerr-McGee.
4
. Actually, we are not certain that Leo and Yoder effectively
do not have a remedy against Welsbach as they have named U.G.I.,
formerly known as United Gas Improvement Company, as a defendant
on a theory that United Gas dominated Welsbach and therefore
U.G.I. is "legally responsible for the obligations of Welsbach."
selling corporation remains a viable entity able to respond in
damages to the injured party, a successor acquiring a product
line will not be liable for injuries caused by the predecessor's
product after the product's sale as in that circumstance there
would be no reason to impose successor liability. Lapollo v.
General Elec. Co., 664 F. Supp. 178 (D.N.J. 1987) (applying New
Jersey law after Ramirez). This initial rationale for the
product-line doctrine of successor liability merely focuses on
the need for imposition of successor liability rather than
whether it is fair to impose it. Therefore, we will not hold
that proof that Leo and Yoder cannot recover against Welsbach
because it has been dissolved is in itself a sufficient basis for
the imposition of successor liability on Kerr-McGee.
The second rationale on which the Supreme Court of New
Jersey based its result in Ramirez was the successor's ability to
assume the predecessor corporation's risk-spreading role. We
think that the Supreme Court of New Jersey would recognize that
Kerr-McGee does not have the capacity to assume Welsbach's risk-
spreading role. In this regard, we point out that if successor
liability can be imposed for a toxic tort arising from the
predecessor's operations at a facility which the successor never
acquires or controls, a prudent manufacturer acquiring a product
line would make an analysis of environmental risks associated
with the seller's facilities similar to that now undertaken by
(..continued)
However, Kerr-McGee has briefed the case on the assumption that
Leo and Yoder do not have a remedy against Welsbach, and thus we
decide the case on that basis.
purchasers of real estate. The purchaser then would attempt to
acquire insurance for possible liabilities associated with the
seller's real estate.
The impediment to commercial transactions from such a
process is evident. Indeed, inasmuch as a manufacturer might
build a product or its component parts at more than one facility,
a purchaser of a product line might face daunting obstacles in
attempting to assess its risks of successor toxic tort liability
for conditions on property to be retained by the seller of the
product line. Furthermore, a product-line purchaser not
acquiring its predecessor's manufacturing facility probably would
not be able to lessen the risks of toxic tort liability
associated with the real estate. It is doubtful that such a
product-line purchaser would be able to undertake cleanup
operations on land it did not own. Moreover, the product-line
purchaser might be unwilling to undertake such potentially costly
projects.5 It seems clear, therefore, that if Ramirez applies
here, a purchaser of a product line will be subject to
liabilities for toxic torts of unpredictable scope for an
indefinite period. Overall, we cannot conceive that the Supreme
Court of New Jersey would believe that the purchaser of a product
line not acquiring the real estate at which the product was
5
. In FMC Corp v. United States Dep't of Commerce, No. 92-1945,
slip op. at 11 (3d Cir. July 5, 1994) (in banc), the government
estimated the cost of environmental cleanup of the facility
involved in that litigation at between $26,000,000 and
$78,000,000.
manufactured reasonably could assume its predecessor's risk
spreading role for toxic torts.6
In contrast, a successor to a product line may be able
to take steps to reduce its risk of liability for injuries caused
by the predecessor's products through recall and educational
programs which include those products. Furthermore, successor
liability for injuries caused by units manufactured by the
predecessor, at least when compared to potential toxic tort
liability, is a discrete manageable matter. First, the successor
may be able reasonably to anticipate the risks associated with a
product it is acquiring. Second, product-line successor
liability is applied in cases of the production of personal
property. Inasmuch as such property is not likely to have an
indefinite useful life, passage of time will diminish the chance
of liability being imposed on the successor.
This constant diminution of exposure to product
liability is enhanced by the rule followed in New Jersey and
elsewhere that a manufacturer cannot be strictly liable unless
there was a defect in the product when it left the manufacturer's
control. Scanlon v. General Motors Corp., 326 A.2d 673, 677
(N.J. 1974). It seems apparent that, except perhaps in design
defect cases, a defect in a product when the manufacturer
distributed the product is likely to manifest itself and cause
6
. In Ramirez the Supreme Court of New Jersey acknowledged that
the negative effect of successor liability in a product liability
case on the sale of manufacturing assets was a "legitimate"
concern. 431 A.2d at 822. Thus, we think it appropriate for us
to consider that effect.
injury within a reasonable time after the product is
manufactured. Accordingly, as a practical matter, successor
liability under Ramirez is likely to be imposed in most cases, if
at all, for a limited period.7 Furthermore, if there is an
injury from a product a long time after it leaves the
manufacturer's hands, the injured plaintiff may have difficulty
establishing that the defect existed in the product when
manufactured and originally distributed. Thus, using the time
scenario here, it would be unusual for the successor in a product
line case to be defending an action in the 1990's for a product
that could have been built at the latest in 1940.
On the other hand toxic tort liability can be imposed
for activities in the distant past. See T & E Indus., Inc. v.
Safety Light Corp., 587 A.2d 1249 (N.J. 1991).8 This tail on
potential toxic tort liability following the disposal of chemical
wastes is attributable to the fact that the toxic wastes may
remain in the ground for long periods, thus exposing persons and
property to injury long after manufacturing has ended. Indeed,
this case demonstrates how long the successor can face claims for
toxic torts. Furthermore, the difficulty that the purchaser of a
product line will have in assessing its risk of liability for
7
. Of course, the length of the period depends on the type of
product involved. For example, machinery might last longer than
automobiles.
8
. We recognize that T & E Indus. is not a personal injury case.
Nevertheless we cite the case to demonstrate how it is possible
that the consequences of chemical disposal may endure for a very
long period.
toxic torts as compared to its risk of successor product
liability is further heightened by the fact that whereas injuries
from defective products are likely to be traumatic, and thus be
immediately obvious, injury from exposure to toxic wastes may
develop over an extended period. We also observe that it would
be more likely that the successor could acquire insurance
coverage for the discrete risks flowing from injuries caused
directly by a predecessor's product than for environmental risks
from conditions on real estate.
The third Ramirez rationale, that it is fair to require
a successor to assume a responsibility for defective products as
that responsibility is a burden necessarily attached to the
successor's acquisition of the predecessor's good will, has no
application in this case. The good will that Kerr-McGee acquired
from Welsbach was attached to the product line it acquired, gas
mantles, rather than to the site at which Welsbach manufactured
the product. Thus, Leo and Yoder do not assert that this is a
case in which Welsbach and Kerr-McGee encouraged the purchasers
of the gas mantles to associate them with their geographical
source, as, e.g., "a genuine widget manufactured in the widget
center of the world." Consequently, while Leo and Yoder point
out that Kerr-McGee's purchase of the Welsbach gas mantle product
line was profitable, and they attribute that profit in part to
the good will it acquired from Welsbach, that point is
immaterial.
In reaching our result, we quite naturally consider our
opinion in City of Philadelphia v. Lead Indus. Ass'n, Inc., 994
F.2d 112 (3d Cir. 1993). There we indicated that while:
[a] federal court may act as a judicial
pioneer when interpreting the United States
Constitution and federal law . . . [i]n a
diversity case . . . federal courts may not
engage in judicial activism. Federalism
concerns require that we permit state courts
to decide whether and to what extent they
will expand state common law . . . . Our
role is to apply the current law of the
jurisdiction, and leave it undisturbed.
Id. at 123 (internal citations and quotations omitted). We could
allow liability to be imposed in this case on Kerr-McGee only if
we stretched Ramirez far beyond its original scope and, in light
of City of Philadelphia v. Lead Indus. Ass'n, Inc., we will not
do that. While the district court believed that this case could
come within the Ramirez holding, in large part it reached that
conclusion because of what it thought was "the traditional New
Jersey view that if you are injured somebody ought to be liable
for it." But we reject that approach. While we might be willing
to apply the precedents of the New Jersey Supreme Court in
circumstances somewhat beyond the limits of liability that court
has recognized in extant cases, we will not apply Ramirez in the
circumstances here, which are far beyond the limits of that case.
In closing, we note that the parties in their briefs
discuss cases involving liability of successors acquiring
contaminated property and other cases involving liabilities
arising from the ownership of and activities on real estate.
See, e.g., T & E Indus., Inc. v. Safety Light Corp., 587 A.2d
1249; State of New Jersey, Dep't of Envtl. Protection v. Ventron
Corp., 468 A.2d 150 (N.J. 1983). We have examined these cases
but do not discuss them, as they have only the most tangential
relationship to this case in light of the fact that Kerr-McGee
never owned, controlled or engaged in activities on the
Gloucester City property.
III. CONCLUSION
We will reverse the order of September 8, 1993, and
will remand the matter to the district court for entry of a
summary judgment in favor of Kerr-McGee.
ELAINE LEO, ET AL. V. KERR-MC GEE CHEMICAL CORP., ET AL., NO. 93-5730
ATKINS, Senior District Judge, specially concurring:
While the record does not reflect the fact, this judge
takes judicial notice of the procedure, adopted by 44 of the
Supreme Courts or comparable final state appellate courts,
permitting federal appellate courts to submit questions for
resolution by such courts, involving state common law issues that
remain "open." Such procedure cries out for decision in the
appeal sub judice. The issue concerns, as the majority opinion
so clearly demonstrates, whether this court should hold an entity
liable for environmental degradation of land for commercial
engrandizement after it obviously profited from such degradation,
even though acquisition of land was not part of the product line
purchase. This salutary certification procedure avoids the
charge, admittedly valid, that the federal courts should avoid
extending, gratuitously, the common law of the states within the
ambit of their jurisdiction. City of Philadelphia v. Lead
Industries Ass'n, 994 F.2d 112 (3d Cir. 1993).
Here, we are called upon to decide what, under a new
set of facts, the Supreme Court of New Jersey would decide in an
issue it has never been called upon to consider. Our problem is
complicated by New Jersey's failure to provide a certification
procedure permitting it to have a needed and proper voice in the
development of the common law of its state.
A. The Development of New Jersey's "Product Line"
Doctrine
When the district court denied the plaintiffs' Motion
for Summary Judgment, it relied on a string of cases defining the
present "product line" theory of successor corporation liability
for strict liability torts. From the trend formed by these
opinions, the district court "predicted" how the New Jersey
Supreme Court would rule under the present factual circumstances.
The district court held that the product line doctrine of
successor liability originally adopted in Ramirez v. Amsted
Industries, Inc., 431 A.2d 811 (N.J. 1981), should be applied to
include circumstances where a predecessor corporation improperly
disposed of toxic manufacturing by-products on its factory site
and then sold its entire product line patented process, good
will, inventory, sales records and trade name, but not the
factory site itself, to a successor corporation which continues
the same manufacturing process at different site. Upon review of
the line of cases dealing with the "product line" theory of
successor corporate liability in products liability cases, I
believe that the district court was correct in determining that
the New Jersey Supreme Court would apply the strict liability
doctrine to a strict liability environmental tort under these
factual circumstances.
B. Analysis
This is not a case where the corporate successor
purchases some of the land that the predecessor contaminated and
then continued a separate business on that land. Therefore,
State Dept. of Environmental Protection v. Exxon Corp., 376 A.2d
1339 (N.J. Super. Ct. Ch. Div. 1977), is distinguishable. This
case is, however, more like Ramirez, supra, in that Welsbach's
product line could be considered as all or substantially all of
the manufacturing assets which were acquired by Kerr-McGee's
predecessors. Thus, even if the assets were acquired exclusively
for cash, and Kerr-McGee and its predecessors undertook
essentially the same manufacturing operation as Welsbach, Kerr-
McGee should be strictly liable for injuries caused by defects in
units or by waste from production of those units of the same
product line, even if previously manufactured and distributed by
Welsbach. See Ramirez, 431 A.2d at 825.
The policies in Ray v. Alad Corp., 560 P.2d (Ca. 1977),
and Ramirez, supra, apply similarly to the present case. First
the plaintiff's potential remedy against Welsbach, the original
manufacturer who caused the contamination, was destroyed by the
Kerr-McGee's purchase of Welsbach's assets, trade name, good will
and Welsbach's resulting dissolution. In other words, Kerr-
McGee's acquisition destroyed whatever remedy plaintiff might
have had against Welsbach. Second, the imposition of successor
corporation liability upon Kerr-McGee is consistent with the
public policy of spreading the risk to society at large for the
costs of injuries from contamination due to a product line. This
is because the successor corporation is in a better position to
bear accident-avoidance costs. In this case, Kerr-McGee is in a
better position to bear the costs because Welsbach transferred to
Kerr-McGee the resource that had previously been available to
Welsbach for meeting its responsibilities to persons injured by
the product line it operated. Third, the imposition upon Kerr-
McGee of responsibility to answer claims of liability for
injuries allegedly caused by Welsbach's product line is justified
as a burden necessarily attached to its enjoyment of Welsbach's
trade name, good will and the continuation of an established
manufacturing enterprise. For "[p]ublic policy requires that
having received the substantial benefits of the continuing
manufacturing enterprise, the successor corporation should also
be made to bear the burden of the operating costs that other
established business operations must ordinarily bear." Ramirez,
431 A.2d at 822. "[I]n light of the social policy underlying the
law of products liability, the true worth of a predecessor
corporation must reflect the potential liability that the
shareholders have escaped through the sale of their corporation."
Id. To avoid such liability Kerr-McGee could have "obtain[ed]
products liability insurance for contingent liability claims, and
it [could have entered] into full or partial indemnification or
escrow agreements with the selling corporation." Id. at 823; see
La Pollo v. General Electric Co., 664 F. Supp. 178 (D.N.J. 1987).
Kerr-McGee, like Bruno in Nieves v. Bruno Sherman
Corp., 431 A.2d 826 (N.J. 1981), was able "to gauge the risks of
injury from defects in the [Welsbach] product line and to bear
the accident-avoidance costs, "since Kerr-McGee was intimately
familiar with the production of gas mantles and the unavoidable
thorium manufacturing waste. Id. at 830. Evidence to support
this conclusion is found by Lindsay's acquisition of all the
assets and sources of information related to the Welsbach product
line. The liability also should apply to Kerr-McGee because
Kerr-McGee's "acquisition of the business assets and
manufacturing operation of [Welsbach] contributed to the
destruction of the plaintiff's remedies against the original
manufacturer" - Welsbach. Id. at 831. Finally, like State Dept.
of Environmental Protection v. Ventron Corp., 468 A.2d 150 (N.J.
1983), I believe that this Court should follow the New Jersey
Supreme Court's application of strict liability in environmental
torts, see Department of Transportation v. PSC Resources, Inc.,
419 A.2d 1151 (N.J. Super. Ct. Law Div. 1980), and apply product
line strict liability to this environmental tort.
The district court in this case "predicted" that the
New Jersey Supreme Court would apply the Ramirez successor
corporation strict liability product line doctrine to strict
liability environmental actions. Since this is an issue of first
impression in New Jersey, the district court truly was
"predicting" the result. Hence, if permitted to prognosticate, I
too would hold that the New Jersey Supreme Court would apply the
doctrine of strict liability to this environmental case and thus
affirm the district court. However, while I believe that the
decision to apply the doctrine to environmental cases should be
left in the hands or the highest state court, there is no method
to certify such a question to the court.
C. The Restraint of City of Philadelphia
Despite my firm conviction that the district court
should be affirmed, I am constrained by the philosophical tenet
of this court in City of Philadelphia, supra, which I respect and
adopt. We are not appointed to be activists but to interpret and
apply the law as we see it. However, I believe that a dangerous
precedent will be set if this court continues down the path which
prohibits direct application of state doctrines. Primarily, the
removal and jurisdictional statutes will be used as a sword to
prevent final resolution of a state claim. For example, where a
defendant realizes that the state's highest court has not ruled
on their specific factual circumstance, but has developed a
doctrine that might be adverse to that defendant, then the
defendant will most assuredly remove the case to federal court
knowing that, on appeal, the circuit court will grant summary
judgment in their favor based on City of Philadelphia. The
result will create an atmosphere where state rights will never be
vindicated and cases will not proceed to their ultimate
conclusion.
Accordingly and reluctantly, I join the majority
remanding this matter to the district court for entry of a
summary judgment in favor of Kerr-McGee.