1994 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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"Leo v. Kerr-McGee Chem. Corp." (1994). 1994 Decisions. Paper 134.

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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 KerrMcGee 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 KerrMcGee 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 riskspreading 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, KerrMcGee 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, KerrMcGee'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 KerrMcGee 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.