The recent rejection of an attempt to dismiss emotional distress claims offers a prescient reminder of the wide breadth of claims a toxic tort plaintiff may prosecute, and the array of damages that may be recoverable.

Judge Alison Nathan of the United States District Court for the Southern District of New York recently issued a decision refusing to dismiss claims for negligent infliction of emotional distress, in an action where two pest control contractors alleged exposure to toxic pesticides within Starbucks’ New York City coffee shops.

In Fox, et al. v. Starbucks Corp., Plaintiffs Paul D’Auria and Jill Shwiner sued Starbucks Corp. (”Starbucks”), alleging exposure to dichlorvos (2,2-dichlorovinyl dimethyl phosphate or “DDVP”) found in pest control products produced by Spectrum Brand Holdings, “No-Pest Strips” and “Hot Shot No-Pest 2.” Plaintiffs allege DDVP exposure poses a host of human health hazards, ranging from dizziness to death, and that they warned Starbucks management the pest control products were unsuitable for deployment near food, beverages, and occupied areas. Plaintiffs claim Starbucks management and personnel nonetheless continued to routinely use numerous sets of the DDVP-containing products.

Starbucks moved to dismiss Plaintiffs D’Auria’s and Shwiner’s negligent infliction of emotional distress claims pursuant to FRCP § 12(b)(6), arguing the emotional distress claims lacked the “guarantee of genuineness” required under New York state law. The Court rejected the argument and held that it was plausible the Plaintiffs would fear for their safety, given the significant health hazards allegedly posed by exposure to DDVP.

Further, Starbucks argued that it was doubtful that the Plaintiffs would choose to continue working while being afraid for their safety. The Court discarded that argument, citing potential personal or economic reasons for the Plaintiffs’ employment.

Starbucks also argued the claims were barred by New York state’s prohibition on contractor recovery for injuries caused by hazards the contractor was hired to address or were inherent in the removal work. As Starbucks argued, exposure to pesticides was an essential part of the pest removal work the Plaintiffs were hired to perform. The Court drew a fine distinction to reject the argument, noting that the pleadings referred to work to address pests and deficiencies that led to pests, rather than work to remove the toxic-exposure hazards created by Starbucks’ alleged use of the DDVP-containing pesticides.

Additionally, Starbucks argued it did not breach a duty of care to Plaintiffs D’Auria and Shwiner, because its operations manual forbid use of DDVP by Starbucks’ suppliers and vendors. The Court noted that the alleged pervasive, recurring, and hazardous pesticide use may have required Starbucks to take greater corrective action. Further, Plaintiffs alleged that a Starbucks compliance specialist dismissed complaints regarding the “No-Pest Strips.” The Court noted that if true, this would mean Starbucks as a whole did not entirely disclaim the use of dichlorvos in its coffee shops.

The action also involves the claims of Plaintiff Rafael Fox, a former Starbucks employee whose claim for negligent infliction of emotional distress was dismissed without opposition as barred by New York state’s workers compensation statute.

The case is Fox, et al. v. Starbucks Corp., case number 1:19-cv-04650, in the U.S. District Court for the Southern District of New York. Exposure to “No-Pest Strips” in New York Starbucks coffee shops is also at issue in a separate class action suit, also pending before Judge Nathan.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.