Andres v. Town of Wheatfield, Occidental Chem. Corp.
| Decision Date | 06 October 2017 |
| Docket Number | Case No. 1:17-cv-00377 |
| Parties | ELIZABETH ANDRES, et al., Plaintiffs, v. TOWN OF WHEATFIELD, OCCIDENTAL CHEMICAL CORPORATION, BELL HELICOPTER TEXTRON, INC., SAINT-GOBAIN ABRASIVES, INC., ROE CONSOLIDATED HOLDINGS, GRAPHITE SPECIALTIES, CROWN BEVERAGE PACKAGING, LLC, and GREIF, INC., Defendants/Third Party Plaintiffs, v. UNITED STATES OF AMERICA, Third-Party Defendant. |
| Court | U.S. District Court — Western District of New York |
(Doc. 39)
On March 26, 2017, current and former residents of North Tonawanda, New York, and surrounding areas (collectively, "Plaintiffs") filed this class action, asserting state law claims of negligence, strict liability for engaging in an abnormally dangerous activity, private nuisance, and trespass. They seek damages for property damage and personal injury, medical monitoring, as well as punitive damages arising from the alleged release of hazardous materials from the Nash Road Landfill ("the Site").
On September 25, 2017, this matter came before the court for oral argument on Defendants' motion for a preliminary injunction (Doc. 39). Defendants Town of Wheatfield, Occidental Chemical Corporation, Bell Helicopter Textron, Inc., Saint-Gobain Abrasives, Inc., and Crown Beverage Packaging, LLC (collectively, "Defendants")1 ask the court to enjoin Plaintiffs from engaging in certain sampling activities without notice and the opportunity for split sampling. More specifically, they ask the court to order Plaintiffs to: (1) preserve and maintain records from previous environmental sampling2 and (2) provide ninety-six hours' notice, contemporaneous access, and split sampling for all future environmental sampling.
Plaintiffs oppose the motion, arguing that the injunction would infringe on attorney work product, the non-testifying expert privilege, and the attorney-client privilege. Although they agree to split sampling, they contend that they can provide such samples to Defendants without allowing Defendants contemporaneous access to the sampling site. Defendants counter that this measure is inadequate to verify the location, chain of custody, and reliability of the samples taken.
In support of their request for preliminary injunctive relief, Defendants proceed solely by affidavit. In doing so, they agree that the court's findings of fact may be based solely on undisputed facts. Defendants consent to be bound in a reciprocal manner by any preliminary injunction the court orders.
For the purposes of the pending motion, the court finds the following by a preponderance of the evidence:1. The Site extends over twenty-five acres, is currently owned by the Town of Wheatfield, and located on 7415 Nash Road, Wheatfield, New York 14120-1511, just north of the North Tonawanda city limits. From 1955-1969, the Site operated as a closed, unlined, and uncapped landfill. During this time, Plaintiffs allege that Defendants, as well as the Niagara Falls Air Force Base, disposed of hazardous waste at the Site, which leached into the soil, surface water, and groundwater of the surrounding area, causing the personal injuries and property damage allegedly suffered by Plaintiffs.
2. In addition to Plaintiffs, approximately two hundred other individuals with potential claims against Defendants have retained the law offices of Napoli Shkolnik PLLC, Smith Stag, LLC, and Christen Civiletto, Esq. to represent them ("non-party potential claimants").
3. "Environmental sampling" is defined as "any sampling associated with any air, soil, water, groundwater, sediment, waste or biological material . . . at any location at, or in the vicinity of, [the Site,] including Plaintiffs' residences and the surrounding neighborhood, whether indoors or outdoors, regardless of who owns the property[.]" (Doc. 39-1 at 1-2, ¶ 3.)
4. "Split samples" are defined as "equivalent portions of the same sample that are analyzed separately, typically by different parties using different laboratories, and is used to spot check the accuracy of data." (Doc. 39-8 at 2.) Split sampling is a routine practice in toxic tort litigation as it allows the parties to compare lab results. See 2 JAMES T. O'REILLY, TOXIC TORTS PRACTICE GUIDE § 17:13 (2d ed. 2017) (). Without split sampling, it will be difficult to obtain nearly equivalent samples because environmental samples have a "hold time," defined as the period between extraction and preservation of the sample, of less than forty-eight hours to fourteen days, depending on the chemical compound tested.
5. Environmental conditions in the soil, surface water, and groundwater of the Site and surrounding properties are uncontrolled and subject to change due to manmade or natural influences, such as rainfall infiltration. As a result, samples taken from the same location but at different times are unlikely to be identical, potentially contributing to variations in testing results, and rendering it difficult to replicate testing results.
6. Proper expert evaluation of samples taken from the Site requires knowledge of the manner, location, and chain of custody of the sample, including the manner of storage, transportation, and preservation until testing occurs. Contemporary access to the sampling site is necessary to obtain this information, minimize the delay prior to transfer of the sample, as well as to ensure that the split samples are as equivalent as possible.
7. In March 2017, the New York State Department of Environmental Conservation ("NYSDEC") announced it will conduct environmental sampling near the Site. Plaintiffs requested and obtained split samples from NYSDEC's environmental sampling. On May 10 and 11, 2017, NYSDEC conducted soil sampling at properties adjacent to the Site and published the results of its testing on July 11, 2017.
8. Plaintiffs have conducted environmental sampling on Plaintiffs' real property and intend to perform further environmental sampling in connection with their claims in this lawsuit, including environmental sampling at the real property owned or occupied by non-party potential claimants.
9. Plaintiffs have made several statements to local media outlets regarding the results of Plaintiffs' environmental testing. For example, on July 11, 2017, the Buffalo News quoted Plaintiffs' counsel as stating that Plaintiffs' testing indicated twenty toxic chemicals were present on residents' properties and that "[w]e're finding it in the kitchens, in the bedrooms, not just in the basements[.]" (Doc. 43-3 at 5.) A July 12, 2017 article by the Investigative Post cites Plaintiffs' counsel statement that he advised "state authorities more than a month ago that his testing found dangerous levels of chemicals inside homes, not the soil." (Doc. 43-4 at 2.)
A preliminary injunction "is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 20.
The Second Circuit has retained its own standard requiring a party seeking a preliminary injunction to show: "[(a)] irreparable harm and [(b)] either [(1)] likelihood of success on the merits or [(2)] sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief[.]" Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 825 (2d Cir. 2015) (internal quotation marks omitted); see also Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 38 (2d Cir. 2010) () (internal quotation marks omitted).
In this case, neither party claims the merits of Plaintiffs' claims or Defendants' defenses are directly implicated by the proposed injunction. Instead, Defendants argue that a preliminary injunction is necessary to prevent the "spoliation of critical evidence[,]" because, in the absence of injunctive relief, it will be impossible for them to replicate Plaintiffs' sampling and confront it with their own expert analysis. (Doc. 39-17 at 25.) Plaintiffs oppose injunctive relief, claiming Defendants seek to intrude on Plaintiffs' privileged communications between their existing and potential clients, as well as their experts. They argue that the proposed injunction will reveal their litigation strategies and impact the privacy interests of non-parties
Defendants cite Abbo-Bradley v. City of Niagara Falls, 293 F.R.D. 401 (W.D.N.Y. 2013), while Plaintiffs cite Abbo-Bradley v. City of Niagara Falls, 3 N.Y.S.3d 842 (N.Y. App. Div. 2015), in support of their respective positions regarding injunctive relief. In Abbo-Bradley, homeowners residing near a landfill brought a Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") claim against the City of Niagara Falls and several corporate defendants, alleging hazardous waste deposited by those defendants had migrated from the landfill and caused Plaintiffs personal injury and property damage. Defendants sought a preliminary injunction from the Western District of New York, seeking (1) written notice ninety-six hours in advance of any environmental testing, (2) contemporaneous access to the sampling site, and (3) an opportunity to take split samples. The federal court granted the proposed injunction,...
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