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From Products Liability Law Daily, September 5, 2018

Claims that new uniforms made airline employees sick soar past manufacturer’s objections to plausibility

By Pamela C. Maloney, J.D.

Allegations set forth in a class action lawsuit against a uniform manufacturer by airline employees who experienced a variety of adverse health issues within weeks of having been issued new uniforms were sufficient to state a claim for negligence and strict products liability despite the variations in products liability law across the various jurisdictions implicated in the nationwide class, a federal district court in Illinois ruled, denying the manufacturer’s motion to dismiss the employees’ complaint. The court also refused to strike the class allegations, finding that it was too early in the litigation to declare that the variations in applicable state laws and individual circumstances of exposure and harm would make a nationwide class unworkable (Zurbriggen v. Twin Hill Acquisition Co., Inc., September 4, 2018, Tharp, J.).

Eleven employees of American Airlines filed a class action complaint on behalf of themselves and thousands of fellow employees alleging that the new uniforms manufactured by Twin Hill Acquisition Co., Inc. had caused a wide variety of health problems. According to the complaint, the alleged problems began within weeks after the uniforms were rolled out to the workforce, and that within ten months following the rollout, over 4,000 flight attendants and pilots who had either worn or worked in proximity to those wearing the uniforms, had reported experiencing health issues, including skin rashes, ear and throat irritation, headaches, fatigue, vertigo, and various auto-immune conditions.

The complaint, which included negligence and products liability claims against Twin Hill, asserted that the new uniforms posed an unreasonable risk of physical harm, including current and future health problems, because the synthetic material used to make the uniforms contained a number of chemicals that were either known carcinogens or were possible carcinogens and that were known to cause other health problems, including auto-immune conditions. In addition to asserting individual claims for personal injury damages, the complaint sought, on behalf of the class: (1) injunctive relief to prevent the further sale of these uniforms to airline employees and to force a recall of those uniforms that already were being used by employees; and (2) equitable relief in the form of medical monitoring to detect and/or diagnose any conditions, symptoms, or injuries resulting from exposure to the uniforms as the result of the manufacturer’s actionable conduct. The uniform manufacturer filed motions to dismiss the negligence and products liability claims for failure to state a claim and to strike all class allegations.

Choice of law. Initially, the court addressed the choice-of-law question raised in this diversity case, explaining that other than the identifying the domicile of two of the employees who had received and began wearing their new uniforms in Illinois, there was little to go on to identify the state or states with the most significant relationship to the alleged harm. For the remaining named employees, the complaint merely identified their domicile; it did not name the state in which they had received and worn their new uniforms. In light of the fact that, for purposes of motions and responses, all the parties had applied the law of each employee’s alleged domicile, the court concluded that the substantive laws of each employee’s individual domiciles would apply to the case.

Design defect. Although the numerous domiciles implicated in this case had adopted a variety of products liability theories, the court recognized that there are some shared principles among these theories, including requiring proof that the product at issue contained an unreasonably dangerous defect that existed at the time the product left the manufacturer’s control and that the defect caused the alleged injuries. Based on these common principles, the court concluded that the employee’s complaint presented a plausible, fact-based allegation that the manufacturer’s uniforms were unreasonably dangerous in their design.

Specifically, the complaint alleged that: (1) thousands of airline employees had experienced adverse health effects from working in and around the uniforms; and (2) testing had shown that some of the new uniforms contained several "auto-immune affecting chemicals," including known and possible carcinogens, which, on their own or in combination, could cause a litany of health problems. These allegations were sufficient to infer a design defect under a consumer expectation test and the various risk-utility tests adopted by the employees’ various domiciliary states, the court said, adding that an ordinary airline employee would not expect company-issued uniforms to give rise to any health problems—let alone skin, respiratory, and auto-immune issues—through normal wear. Although the complaint did not offer an alternative design, one could be inferred from the allegations: i.e., a uniform free of the hazardous chemicals identified in the complaint. Whether it was feasible for the manufacturer to produce uniforms in a way that would minimize or eliminate these substances was a question of fact to be developed through discovery, the court advised.

The allegations also suggested that the manufacturer knew or should have known that its uniforms would cause numerous airline employees to develop health problems, thereby giving rise to an inference that the manufacturer had failed to exercise reasonable care in designing the new uniforms. The complaint averred that during the initial testing period, many of the pilots reported experiencing the health issues listed in the complaint. In addition, one of the pilots’ unions had requested that the uniforms not be used. Finally, the manufacturer was involved in litigation in which employees of another airline had reported experiencing similar adverse reactions to the company’s uniforms.

The court rejected the manufacturer’s argument that the employees had failed to allege that its uniforms had caused the complained-of harms. In addition to setting forth the results of the tests revealing the presence of carcinogenic chemicals, the complaint laid out the link between the rollout of the new uniforms and the reports of adverse health problems that began within weeks, if not days, after the employees began wearing the new uniforms. Additional allegations that the only common event that happened to the entire workforce during the timeframe was the introduction of the new uniforms and that the adverse reactions typically dissipated when the employees were not exposed to the uniforms were sufficient to satisfy federal pleading standards. Finally, any failure to specify which uniform garments each employee wore or what specific adverse health effects each employee experienced was not detrimental to the sufficiency of the allegations at this early stage in the litigation. According to the court, those details could be developed during discovery.

Class action certification. In support of its motion to strike the class allegations, the manufacturer argued that the variations in state products liability and medical monitoring laws made certification impossible in a case that could require the application of the laws of all 50 states. Furthermore, the divergent legal standards would be complicated by the individual circumstances in each class member’s case—such as how long the individual wore the new uniform, the alleged chemical(s) present in each uniform, and each affected employee’s health history. However, the court refused to declare a class action unworkable based on the variations in state law arising from the airline’s nationwide presence and the mobility of its workforce. The court also pointed at that it was unclear at the early stage of the litigation which state law ultimately would be at issue. Furthermore, the critical issue in the case—whether any of the manufacturer’s clothing items were capable of causing the alleged harm either by direct contact or proximity—gave rise to at least one common question of fact that likely would be addressed through class-wide proof and expert testimony. Finally, the court suggested that material differences in substantive state law could be addressed through the use of subclasses.

The manufacturer offered a second argument for striking the class allegations, claiming that there was no evidence to support the request for prospective relief because, given the airline’s decision to permit its employees to wear alternative uniforms, the named employees could not show that any members of the proposed class were suffering from a continuing harm. This argument ignored allegations in the complaint that the named employees and putative class members continued to suffer health problems by working near employees who still wore the new uniforms. Concluding that the employees’ proximity theory was not implausible based on the facts alleged, the court held that the named employees sufficiently had pleaded on-going or future harm to support its request for class certification.

The case is No. 17 C 5648.

Attorneys: Charles Jacob Gower (Burns Charest LLP) for Thor Zurbriggen. Francis A. Citera and Caitlyn E. Haller (Greenberg Traurig, LLP) for Twin Hill Acquisition Co., Inc. Mark W. Robertson (O'Melveny & Myers LLP) and Larry S. Kaplan (Kaplan, Massamillo & Andrews, LLC) for American Airlines, Inc.

Companies: Twin Hill Acquisition Co., Inc.; American Airlines, Inc.

MainStory: TopStory DesignManufacturingNews ClassActLitigationNews CausationNews ClothingAccessoriesNews IllinoisNews

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