Abbatiello v. Monsanto Co.
| Decision Date | 02 November 2007 |
| Docket Number | No. 06 Civ. 0266(VM).,No. 07 Civ. 3258(VM).,No. 06 Civ. 3461(VM).,06 Civ. 0266(VM).,06 Civ. 3461(VM).,07 Civ. 3258(VM). |
| Citation | 522 F.Supp.2d 524 |
| Parties | Michael ABBATIELLO, et al., Plaintiffs, v. MONSANTO COMPANY, Solutia, Inc. and Pharmacia Corporation, Defendants. Alan Abele, et al., Plaintiffs, v. Monsanto Company, Solutia, Inc. and Pharmacia Corporation, Defendants. Armand Corlew, Vincent Riggi, Stephen Cernak, Jr., and Ruth Depaolo, individually and on behalf of a class similarly situated, Plaintiffs, v. General Electric Company, Monsanto Company, Solutia, Inc., and Pharmacia Corporation, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Lawrence Perry Biondi, Law Offices Of Lawrence P. Biondi, White Plains, NY, for plaintiffs.
James Kenneth Leader, Leader & Berkon LLP, New York, NY, for Monsanto Co.
Thomas Key Richards, Leader & Berkon LLP, New York, NY, for Thomas M. Carney.
James Kenneth Leader, Leader & Berkon LLP, New York, NY, Thomas Key Richards, Leader & Berkon LLP, New York, NY, for Pharmacia Corp.
Arthur John Siegel, Bond, Schoeneck & King, PLLC(Albany), Albany, NY, James Kenneth Leader, Thomas Key Richards, Leader & Berkon LLP, New York, NY for General Elec. Co.
DECISION AND ORDER
Two groups of plaintiffs, representing 590 current employees and 486 former employees (collectively, the "Employees") of defendant General Electric Company ("GE"), brought actions against defendants Monsanto Company, Solutia, Inc., and Pharmacia Corporation (collectively, "Monsanto") claiming negligence, breach of warranty, strict liability, fraud, negligent infliction of emotional distress, intentional infliction of emotional distress, assault, battery, abnormally dangerous activity, medical monitoring, and fear of contracting illness.
A third group of plaintiffs, representing owners and occupiers of land located near a GE facility (the "Landowners"), brought a class action against GE and Monsanto claiming negligence, breach of warranty, strict liability, fraud, negligent infliction of emotional distress, intentional infliction of emotional distress, abnormally dangerous activity, medical monitoring, fear of contracting illness, nuisance, trespass, unjust enrichment, willful and wanton misconduct, and violations of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601 et seq. ("CERCLA").
The defendants in each action have moved to dismiss certain of the plaintiffs' claims pursuant to Federal. Rules of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") and 9(b) ("Rule 9(b)"). By Order dated September 28, 2007, the Court granted in part and denied in part the defendants' motions and indicated that it would subsequently set forth its findings, reasoning, and conclusions in a separate decision. For the reasons stated below, the defendants' motions are GRANTED IN PART and DENIED IN PART.
The following facts are taken from the Employees' and Landowners' amended complaints,1 which the Court accepts as true for the purpose of ruling on the motions to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001)).
From the 1930s to the mid-1970s, Monsanto sold materials and products containing polychlorinated biphenyls ("PCBs") to GE for use in manufacturing a variety of products including electric motors, generators, gas turbines, wire and cable, insulating materials and microwave tubes at an industrial manufacturing facility, owned and operated by GE, located in Schenectady, New York (the "GE Plant"), Monsanto designed and manufactured PCB-containing products in two plants, located in Alabama and Illinois, and was the sole United States manufacturer of PCBs.
The GE Plant opened in 1886 and today maintains a forty-building operation on approximately 640 acres. The central and eastern portions of the GE Plant are primarily manly used for manufacturing electrical products. The western portion of the GE Plant, which contains three former landfills, two wetlands, and two streams, was used as a dumping ground for solid and water waste from the mid-1940s through the early 1980s.
The Employees and the Landowners allege that Monsanto and GE were aware, beginning in the 1930s, that PCBs were hazardous materials. By 1975, the National Institute for Occupational Safety and Health and the Environmental Protection Agency reported to Monsanto the health dangers of PCBs. In the late 1970s, because of the hazardous effect of PCBs on humans and the environment, the United States government officially banned PCB production. See 15 U.S.C. § 2605(e)(3)(A).
In 1987, the New York State. Department of Environmental Conservation ("NYSDEC") classified the GE Plant as a "Class 2 site," meaning that it posed a significant threat to the public health or the environment and action to correct that hazard was required. In 1995, GE entered into an order on consent (the "Consent Order") to complete a site-wide environmental investigation of the GE Plant. In accordance with the Consent Order, GE completed a Remedial Investigation ("RI") and Feasibility Study of the GE Plant. Testing occurred from 1995 through 2003, Kand PCB concentrations exceeding the NYSDEC recommended safe screening levels were found in surface soil, subsoil, shallow groundwater, seeps, wetland sediment, and biota (living animal) samples around the GE Plant.
In considering a motion to dismiss pursuant to Rule 12(b)(6), a court construes the complaint broadly, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). However, mere "conclusions of law or unwarranted deductions of fact" need not be accepted as true. First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir.1994) (quotation marks and citation omitted). A court should not dismiss a complaint for failure to state a claim if the factual allegations sufficiently "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007).
GE moves to dismiss the Landowners' negligence, strict liability, negligent infliction of emotional distress, intentional infliction of emotional distress, abnormally dangerous activity, nuisance, and trespass claims on the ground that they are barred by the statute of limitations.
The limitations period for "actions to recover damages for personal injury or property damage caused by the latent effects of exposure to a substance or combination of substances" is governed by section 214-c(2)of the New York Civil Practice Law and Rules (" § 214-c(2)"). See Jensen v. Gen. Elec. Co., 82 N.Y.2d 77, 603 N.Y.S.2d 420, 623 N.E.2d 547, 555 (1993). Section 214-c(2) provides for a three-year limitations period, which is "computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier." N.Y. C.P.L.R. § 214-c (2); see also MRI Broadway Rental, Inc. v. U.S. Mineral Prods. Co., 92 N.Y.2d 421, 681 N.Y.S.2d 783, 704 N.E.2d 550, 554 (1998) () (citation and quotation marks omitted).
The statute of limitations is an affirmative defense, and therefore "the defendant bears the burden of establishing by prima facie proof that the limitations period has expired since the plaintiffs claims accrued." Overall v. Estate of Klotz, 52 F.3d 398, 403 (2d Cir.1995) (citation omitted); see also Harris v. City of New York, 186 F.3d 243, 250 (2d Cir.1999) ().
GE has not met its burden here. GE asserts, in a conclusory manner, that the Landowners should have discovered their injuries, at the latest, in 2003 when the RI for the GE Plant was complete. According to the Landowners, the purpose of the RI was to "collect and evaluate data regarding the nature and extent of contamination" at the GE Plant, not the surrounding properties. (Landowners' Compl. ¶ 38.) Additionally, the Landowners assert that GE concealed from them and the public that the contamination had spread to surrounding areas. (See id. ¶ 41.) In their opposition papers, the Landowners allege that they did not discover, nor should they have discovered through the exercise of reasonable diligence, the injuries to their person or property until on or about April 20, 2006 when soil samples collected from their property were tested and on or about March 14, 2007 when individual plaintiffs' blood samples were tested. Therefore, GE has not demonstrated that the Landowners knew or should have known, through the exercise of reasonable diligence, of their injuries before their land was tested in April, 2006.
"`Where it does not conclusively appear that a plaintiff had knowledge of facts from which the injury could reasonably be inferred, the complaint should not be dismissed on motion and the question should be left to the trier of fact.'" Bano v. Union. Carbide Corp., 361 F.3d 696, 710 (2d Cir.2004) (quoting Glod v. Morrill Press Div. of Engraph, Inc., 168 A.D.2d 954, 564 N.Y.S.2d 905, 908 (App. Div. 4th Dep't 1990)). Accordingly, GE's motion to dismiss on the basis of the statute of limitations is denied.
The Employees allege that Monsanto committed assault and battery by releasing and dispersing toxic substances and pollutants into the Employees' work environment and allowing those substances to remain there. Monsanto moves to dismiss for...
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