Abrams v. Ciba Specialty Chemicals Corp.

• Decision Date: 01 October 2009
• Docket Number: Civil Action No. 08-0068-WS-B.
• Citation: 659 F.Supp.2d 1225
• Parties: Cleon ABRAMS, Sr., et al., Plaintiffs, v. CIBA SPECIALTY CHEMICALS CORPORATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

Page 1225

659 F.Supp.2d 1225

Cleon ABRAMS, Sr., et al., Plaintiffs, v. CIBA SPECIALTY CHEMICALS CORPORATION, et al., Defendants.

Civil Action No. 08-0068-WS-B.

United States District Court, S.D. Alabama, Southern Division.

October 1, 2009.

Dennis C. Reich, Kaitlin Amara Lindfeldt Clark, Michael T. Howell, Reich & Binstock, LLP, Houston, TX, Scott E. Denson, McCleave Denson Shields, LLC, Mobile, AL, Fred D. Gray, Gray, Langford, Sapp, McGowan & Gray, Tuskegee, AL, Linda J. Nelson, Lambert and Nelson, New Orleans, LA, for Plaintiffs.

ORDER

WILLIAM H. STEELE, District Judge.

This matter comes before the Court on defendants' Motion for Partial Summary Judgment as to All Damages Predicated upon Events or Actions Occurring Prior to February 6, 1988 (doc. 224). This Motion has been briefed and is ripe for disposition.¹

I. Background.

This action involves claims that certain real property located in and around McIntosh, Alabama has been damaged by DDT contamination. The 277 plaintiffs² who brought this lawsuit are property owners who maintain that the source of the contamination was a chemical manufacturing plant in McIntosh that is or was at various times owned and operated by defendants, Ciba Specialty Chemicals Corporation, Ciba-Geigy Corporation, Novartis, Ltd., Inc., and Syngenta Crop Protection, Inc. (collectively, "Ciba"). According to the First Amended Complaint (doc. 26), the nub of plaintiffs' claims is their contention that "beginning in about 1952, solid and liquid wastes were disposed of by [Ciba] in several known source areas. These source areas and the manufacturing processes have been managed in such a way that large amounts of chemicals, commonly known as DDT, DDD, and DDE (collectively DDTr), have impacted the McIntosh community and the homes of plaintiffs. . . . The residences contain concentrations of DDTr at levels which pose an unacceptable risk to human health thereby reducing the property values of the community." (Doc. 26, ¶¶ 17-18.) Plaintiffs' theory is that the wind has carried DDTr particulate matter off the Ciba site and onto their properties dating back to the 1950s and early 1960s, when Ciba was actively producing DDT at that location, and continuing through the present day. On summary judgment, plaintiffs have staked themselves to a position that the measure of damages they seek to recover is confined to the cost of decontaminating their properties.

Upon initiating this lawsuit by filing their Complaint in February 2008, plaintiffs parlayed these basic factual allegations into 11 causes of action asserted by each plaintiff against each defendant, to-wit: negligence, conspiracy, strict liability, trespass, nuisance, intentional misrepresentation, negligent misrepresentation, fraud/fraudulent concealment, constructive fraud, punitive/exemplary damages, and violation of the federal Racketeer Influenced and Corrupt Organizations Act.³ Each defendant countered by invoking the same 41 affirmative defenses in its Answer (docs. 57-60).⁴

In the interests of justice, efficiency and judicial economy, Magistrate Judge Bivins developed and implemented a trial plan pursuant to which the claims of 27 representative "test plaintiffs" would proceed through the discovery and trial processes first, after which a case management plan would be tailored for the remaining plaintiffs. (See docs. 66, 239.) Of the original 27 test plaintiffs, only 17 remain in the case in a test plaintiff capacity at this time, for various reasons. The jury's verdict as to any test plaintiff will not be binding on any non-test plaintiff. The test plaintiff discovery period has concluded, and the test plaintiff trial is set for jury selection on November 3, 2009, with trial to follow during the November 2009 civil term. In preparation for trial, the parties have collectively filed some 14 motions for summary judgment or partial summary judgment, presenting various legal issues for judicial resolution before trial in an effort to streamline and focus the case.

This Order is confined to defendants' Motion for Partial Summary Judgment to dismiss all of plaintiffs' claims predicated on events occurring more than 20 years before February 6, 2008, the date on which the Complaint was filed. Defendants begin with the premise (uncontested by plaintiffs) that Ciba last manufactured DDT at its McIntosh facility in the mid-1960s.⁵ To the extent, then, that plaintiffs seek to hold defendants liable for acts and omissions taken in connection with the production and waste disposal processes attendant to the manufacture of DDT (as opposed to migration of this contaminant off Ciba's site after production ended), plaintiffs attempt to recover for alleged wrongdoing by Ciba more than 40 years ago. In this Motion for Partial Summary Judgment, defendants maintain that plaintiffs' efforts to obtain relief for events occurring more than 20 years before the filing of the Complaint are categorically barred by Alabama's rule of repose. Plaintiffs respond that the commencement date of Alabama's rule of repose is preempted in this case by federal statute and is therefore no impediment to the timeliness of their claims. This discrete, purely legal issue has been squarely presented for disposition at this time.⁶

II. Analysis.

A. Overview of Alabama's Rule of Repose.

"Since 1858, causes of action asserted in Alabama courts more than 20 years after they could have been asserted have been considered to have been extinguished by the rule of repose." Collins v. Scenic Homes, Inc., ___ So.3d ___, ___ (Ala.2009) (citation omitted); see also Moore v. Liberty Nat. Life Ins. Co., 267 F.3d 1209, 1213-14 (11th Cir.2001) (stating that "it is clear that any claim in Alabama courts, brought more than twenty years after the time when it first could have been, is barred if the rule of repose applies"). In Alabama, this rule of repose is a creature of common law, not one of legislative enactment. See Moore, 267 F.3d at 1213 (discussing "Alabama's judicially created rule of repose"). Its only element is time. See Ex parte Liberty Nat. Life Ins. Co., 825 So.2d 758, 764 (Ala.2002) (noting that "the rule is based solely upon the passage of time"). Application of the rule "is not affected by the circumstances of the situation, by personal disabilities, or by whether prejudice has resulted or evidence obscured." Boshell v. Keith, 418 So.2d 89, 91 (Ala.1982). In that regard, concepts of notice or discovery of the injury have no place in Alabama's rule of repose analysis; rather, the 20-year period runs irrespective of when the plaintiff first received notice of the claim. See Liberty, 825 So.2d at 764; Moore, 267 F.3d at 1218. In short, "the rule of repose bars actions that have not been commenced within 20 years from the time they could have been commenced." Collins, 2009 WL 1875575, at *5 (citation and internal quotation marks omitted). Where the rule applies, the 20-year time period begins to run when the complained-of action occurs, not when the claim might otherwise accrue. Moore, 267 F.3d at 1218.

Alabama courts frequently remark on the conceptual similarities between the rule of repose and statutes of limitations. See, e.g., Harrison v. Alabama Forever Wild Land Trust, 4 So.3d 1114, 1117 (Ala. 2008) ("This principle of repose or prescription is similar to a statute of limitations, but not dependent upon one, and broader in scope.") (citations omitted); Liberty, 825 So.2d at 764 (recognizing that Alabama's rule of repose "is similar to a statute of limitations"). That said, the differences between Alabama's rule of repose and a traditional statute of limitations are pronounced and well-defined. The Alabama Supreme Court catalogued the most significant of these differences as follows: "First, the rule is based solely upon the passage of time, . . . and is not based upon concepts of accrual, notice, or discovery— concepts that are applicable to statutes of limitation. . . . Second, the rule is broader than a statute of limitation in that while a statute of limitations generally is procedural and extinguishes the remedy rather than the right, ... repose is substantive and extinguishes both the remedy and the actual action." Liberty, 825 So.2d at 764-65 (internal quotation marks and citations omitted); see also German ex rel. Grace v. CSX Transp., Inc., 510 F.Supp.2d 630, 632-33 (S.D.Ala.2007) (reciting differences between Alabama's rule of repose and traditional statutes of limitations).

B. This Court's Commencement Date Rulings in Related Litigation.

As the parties acknowledge, there is a certain deja vu quality to their briefing concerning the application of Alabama's rule of repose in this case. That is because this Court previously ruled on this very issue after considering arguments from the same attorneys about the same (or substantially similar) underlying conduct and events, and relating to the same (or substantially similar) theories of liability, in the predecessor Ciba McIntosh litigation styled Jessie Fisher, et al. v. Ciba Specialty Chemicals Corporation, et al., Civil Action No. 03-0566-WS-B. In fact, the Court wrote to the rule of repose issue on two occasions in Fisher. (See docs. 56 and 557 in Civil No. 03-566.) Furthermore, the Court decided an identical rule of repose issue in another McIntosh contamination case brought by the same plaintiffs' attorneys and styled (at that time) Dorothy Jean Reed, et al. v. Olin Corporation, et al., Civil Action No. 03-0567-WS-B.⁷ (See doc. 36 in Civil No. 03-567.)

In each of these cases, the Court considered the effect, if any, of the federal Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. §§ 9601 et seq. ("CERCLA"), on application of Alabama's rule of repose. In so doing, the Court acknowledged that when a federal court is sitting in diversity, as is the case here, state law generally governs action commencement issues such as statutes of limitation and...