Yslava v. Hughes Aircraft Co.

• Decision Date: 17 November 1993
• Docket Number: No. CIV 91-525 TUC JMR,CIV 92-564 TUC JMR.,CIV 91-525 TUC JMR
• Citation: 845 F. Supp. 705
• Parties: Mary H. YSLAVA, et al., Plaintiffs, v. HUGHES AIRCRAFT COMPANY, Defendant. Joe Ann LANIER, et al., Plaintiffs, v. HUGHES AIRCRAFT COMPANY, Defendant.
• Court: U.S. District Court — District of Arizona

845 F. Supp. 705

Mary H. YSLAVA, et al., Plaintiffs, v. HUGHES AIRCRAFT COMPANY, Defendant.

Joe Ann LANIER, et al., Plaintiffs, v. HUGHES AIRCRAFT COMPANY, Defendant.

Nos. CIV 91-525 TUC JMR, CIV 92-564 TUC JMR.

United States District Court, D. Arizona.

November 17, 1993.

COPYRIGHT MATERIAL OMITTED

Sheldon Lazarow, Lazarow & Lazarow, Tucson, AZ, Jerry S. Cohen, Anthony Z. Roisman, Richard S. Lewis, Cohen, Milstein, Hausfeld & Toll, Washington, DC, Robert A. Bonn, Tucson, AZ, for plaintiffs.

Bruce A. Featherstone, Kirkland & Ellis, Denver, CO, Michael J. Meehan, Janet C. Bostwick, Meehan & Associates, Tucson, AZ, for defendant Hughes Aircraft Co.

ORDER

ROLL, District Judge.

INTRODUCTION

Numerous lawsuits allege Hughes Aircraft Company ("Hughes") caused the contamination of groundwater in the Tucson International Airport area resulting in personal injury and/or death to plaintiffs or plaintiffs' decedents. Hughes operates a manufacturing facility on this property near the Tucson International Airport. Plaintiffs allege that from 1952 to 1981 Hughes disposed of hazardous wastes and substances, including TCE, by dumping these substances on its property. Plaintiffs claim these substances seeped through the soil and entered the groundwater from which plaintiffs received drinking water. Plaintiffs further allege Hughes was aware of the potential for contamination as early as 1957. Hughes defends claiming it has always disposed of any hazardous substances in accordance with state of the art procedures.

Plaintiffs in Yslava raise federal and state claims. Plaintiffs seek to recover costs already incurred in determining whether and to what extent they have been exposed to contaminated water as well as future medical monitoring costs as "costs of response" under § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. ("CERCLA"). Plaintiffs allege they and/or plaintiffs' decedents have been exposed to hazardous wastes and substances as a result of Hughes' conduct. These plaintiffs are already ill or contend that this exposure increases their risk of contracting cancer and other serious illnesses in the future and thus seek regular medical testing and evaluation to assure early detection of such diseases. Plaintiffs also seek to recover attorneys' fees.

Under state law, plaintiffs also seek to recover damages for medical monitoring costs already incurred as well as future medical monitoring costs under state law theories of negligence, nuisance, trespass and strict liability. Plaintiffs also seek attorneys' fees in connection with their state law claims.

On November 1, 1993, the Court conducted a hearing on multiple motions filed by the parties. At the hearing, the Court granted the Yslava plaintiffs' Motion for Leave to File a Second Amended Complaint. Further, the Court denied Hughes' Motion to Modify Paragraph 4 of this Court's January 25, 1993 Order. The Court took the remaining motions under advisement.

Under advisement and the subject of this Order are Hughes' Motion to Dismiss plaintiffs' medical monitoring claims, Hughes' Motion to Dismiss plaintiffs' claims for attorneys' fees and the Lanier plaintiffs' Motion for Class Certification.¹

DISCUSSION

Motion to dismiss claims for medical monitoring

Medical Monitoring under CERCLA

Plaintiffs seek to recover costs for medical monitoring as "response costs" under § 107(a) of CERCLA. Hughes moves to dismiss these claims arguing that 1) private plaintiffs may not recover medical monitoring cost under CERCLA, and 2) medical monitoring costs do not qualify as "response costs" under CERCLA. Thus, Hughes asserts plaintiffs' claims fail as a matter of law and must be dismissed.

Private plaintiffs may not recover medical monitoring costs as "response costs" under CERCLA. Daigle v. Shell Oil Company, 972 F.2d 1527 (10th Cir.1992). Even assuming a private party could recover "response costs," medical monitoring programs do not constitute response costs under CERCLA. Id. at 1533-37. But see Brewer v. Ravan, 680 F.Supp. 1176 (M.D.Tenn.1988); Williams v. Allied Automotive, 704 F.Supp. 782 (N.D. Ohio 1988).

Accordingly, Hughes' motion to dismiss plaintiffs' medical monitoring claims under CERCLA is GRANTED.

Medical Monitoring under state law

Under state law, plaintiffs seek to recover damages for medical monitoring costs already incurred as well as future medical monitoring costs under state law theories of negligence, nuisance, trespass and strict liability. Hughes contends the plaintiffs' state law claims for medical monitoring must be dismissed because the Court lacks subject matter jurisdiction over these state law claims.

Hughes claims 42 U.S.C. § 9613(h) operates as a jurisdictional bar precluding this claim.² As support, Hughes maintains that the federal Agency for Toxic Substances and Disease Registry ("ATSDR") possesses the exclusive authority to implement medical monitoring programs and that ATSDR has not done so. Hughes alleges plaintiffs' state law claims for medical monitoring challenge the ATSDR's response actions thus implicating the jurisdictional bar of § 9613(h).

At the outset, § 9613(h) only bars challenges to "removal or remedial action." In Daigle, the court concluded that medical monitoring programs did not constitute response costs under CERCLA. Daigle, 972 F.2d 1527. The Daigle court found that medical monitoring is not recoverable under CERCLA because medical monitoring is not embraced within the meaning of "costs of response." Id. at 1533-37. Therefore, because "costs of response" does not include medical monitoring, and "costs of response" includes "removal" and "remedial action," medical monitoring cannot be either "removal or remedial action." Thus, § 9613(h) does not bar the plaintiffs' state law claims because plaintiffs seek medical monitoring and medical monitoring does not qualify as "removal or remedial action." Contra In re Hanford Nuclear Reservation Litigation, 780 F.Supp. 1551 (E.D.Wash.1991).

Not only does Daigle require this result, but Hughes argued this same conclusion as a basis for dismissal of the CERCLA medical monitoring claims. Hughes argued that medical monitoring programs did not qualify as "response costs" under CERCLA. Hughes thus concluded that medical monitoring costs could not be recovered under CERCLA.³

Even assuming medical monitoring programs qualify as removal or remedial action, the jurisdictional bar of § 9613(h) still does not preclude this Court's jurisdiction. Section 9613(h) bars "challenges" to removal or remedial action ie response actions. If the action does not "challenge" a response action, the jurisdictional bar does not apply.

Plaintiffs' state law medical monitoring claims in no way challenge a response action. Examining the underlying goals and purposes of CERCLA makes clear that plaintiffs' medical monitoring claims are not a challenge to response actions.

CERCLA was designed to protect public health and the environment by ensuring the prompt cleanup of hazardous wastes. H.R. REP. NO. 1016, 96th Cong., 2d Sess., pt. 1, at 17, reprinted in 1980 U.S.C.C.A.N. 6119, 6119. Congress was concerned that lengthy and protracted litigation filed during the progress of response actions would delay hazardous waste cleanups. These challenges would delay cleanup activities, increase response costs and discourage settlements and voluntary cleanups. In re Hanford Nuclear Reservation Litigation, 780 F.Supp. 1551, 1558 (E.D.Wash.1991) (citing H.R.Rep. No. 253(I), 99th Cong., 2d Sess. 139 (1986), reprinted in 1986 U.S.C.C.A.N. 2835, 2921).

Congress amended CERCLA adding § 9613(h) to further this policy of ensuring prompt cleanups.

Congress was no doubt concerned, first and foremost, that clean-up of substances that endanger public health would be delayed if EPA were forced to litigate each detail of its removal and remedial plans before implementing them. Thus, the Senate Judiciary Committee Report stated that § 9613(h) barred pre-enforcement review ...

Reardon v. United States, 947 F.2d 1509, 1513 (1st Cir.1991) (en banc).

Indeed, § 9613(h)'s jurisdictional bar is intended to ensure the prompt and unencumbered cleanup of hazardous wastes. See Schalk v. Reilly, 900 F.2d 1091, 1097 (7th Cir.1990) (§ 9613(h) enacted to prevent judicial review from delaying prompt response to hazardous releases), cert. denied 498 U.S. 981, 111 S.Ct. 509, 112 L.Ed.2d 521 (1990). Courts have recognized that § 9613(h) will not apply to CERCLA actions which do not impair the goals of CERCLA and specifically the purpose of § 9613(h).

In Reardon v. United States, the court held that § 9613(h) did not deprive the federal district court of jurisdiction to hear a constitutional challenge to a lien placed on property pursuant to CERCLA. Reardon, 947 F.2d 1509. The court ruled that a due process challenge to the CERCLA lien provisions was not a challenge to "removal or remedial action" and thus § 9613(h) did not bar jurisdiction. Id. at 1515. The court found that extending jurisdiction to the plaintiffs' claims would not impair the underlying purposes of § 9613(h). Id.

Additionally, in Chemical Waste Management, Inc. v. U.S. E.P.A., 673 F.Supp. 1043 (D.Kan.1987), Chemical Waste sued challenging procedures used by the EPA to determine that it was not in compliance with federal regulations. Despite the broad language of § 9613(h), the court ruled that § 9613(h) did not deprive the court of jurisdiction. The court first noted that § 9613(h) was designed to "preclude piecemeal review and excessive delay of cleanup." Id. The court then found that the plaintiffs were not potentially responsible parties whose suit would hinder a removal or remedial action and that the action did not seek a remedy that would delay a cleanup. Id. The court determined that the "plaintiffs were merely seeking review of EPA decisionmaking outside the context of a particular cleanup plan ..." Id. Ac...