Askey v. Occidental Chemical Corp.

• Decision Date: 25 May 1984
• Citation: 477 N.Y.S.2d 242,102 A.D.2d 130
• Parties: Helen and Blair ASKEY; Connlith Keogh; John and Elaine Machelor; Leo and Grace Machelor, Appellants, v. OCCIDENTAL CHEMICAL CORPORATION; Hooker Chemical Corporation; Occidental Petroleum Investment Corporation; and Occidental Petroleum Corporation, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 242

477 N.Y.S.2d 242

102 A.D.2d 130

Helen and Blair ASKEY; Connlith Keogh; John and Elaine

Machelor; Leo and Grace Machelor, Appellants, v. OCCIDENTAL CHEMICAL CORPORATION; Hooker Chemical

Corporation; Occidental Petroleum Investment

Corporation; and Occidental Petroleum

Corporation, Respondents.

Supreme Court, Appellate Division,

Fourth Department.

May 25, 1984.

Robert Sugarman, Philadelphia, Pa., Lewis Steele, Niagara Falls (Robert Sugarman, Philadelphia, Pa., of counsel), for appellants.

Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo (David Floyd, Buffalo, of counsel), for respondents.

Before CALLAHAN, J.P., and DENMAN, BOOMER, O'DONNELL and SCHNEPP, JJ.

SCHNEPP, Justice.

This action for damages and injunctive and other equitable relief was commenced by eight plaintiffs on their own behalf and on behalf of a purported class of persons and entities for personal injuries and property damage caused by the alleged discharge of toxic substances from defendants' Hyde Park landfill in the Town of Niagara, New York. They appeal from an order of Special Term which denied their prediscovery motion to maintain the action as a class action and struck from the complaint the allegations relating to the class for which certification was sought. The novel issue presented is whether those persons who have an increased risk of cancer, genetic damage and other illnesses by reason of their exposure to the toxic chemicals emanating from the landfill, but whose physical injuries are not evident, should be certified as a class for the purpose of determining their right to recover the costs of future medical monitoring services to diagnose warning signs of the development of disease.

The Hyde Park landfill is the successor chemical and waste disposal site to defendants' Love Canal site. It is roughly triangular in shape, occupying approximately 15 acres in an industrial complex in the extreme northwest corner of the Town of Niagara. The defendants concede that between 1953 and 1974 an estimated 80,000 tons of 25 different chemical residues were deposited there. Plaintiffs allege that these residues have seeped into the ground and migrated from the site via a drainage channel known as the "Bloody Run Creek" which flows north from the landfill, as well as through air dispersion of particulate matter, thus exposing area residents to cancer-causing agents.

The landfill has been the subject of much litigation brought not only by area residents but by public bodies as well. An action instituted in 1978 by the Town of Niagara against defendants was subsequently discontinued. In 1979, 15 property owners in the area filed a notice of claim against various local governments for personal injuries allegedly caused by exposure to the landfill's toxic chemicals. A suit brought in Federal district court by the United States Environmental Protection Agency against defendants was settled in 1982 (U.S. v. Hooker Chemicals and Plastics Corp., 540 F.Supp. 1067). While the settlement agreement established a comprehensive environmental testing, remedial and monitoring program, it did not absolve defendants from liability in actions brought by private individuals who were not parties to the settlement. Presently there are in addition to the instant action 23 other actions pending in New York Supreme Court, Niagara County against defendants, the County of Niagara and the Towns of Niagara and Lewiston on behalf of 43 plaintiffs who seek $22,700,000 for personal injuries and $675,000 for property damages. These plaintiffs are alleging a broad range of more than 70 different illnesses and maladies attributable to their alleged exposure to the toxic chemicals.

The named plaintiffs in the present action are persons who live or have lived near the site. Helen and Blair Askey have owned and resided at a home located less than one quarter mile from the landfill and 75 yards from Bloody Run Creek since 1953. Stanley Nogash, who is now deceased owned and resided at a home located less than one quarter mile from the landfill and near Bloody Run Creek from 1918 until 1983. Leo and Grace Machelor have owned and resided at a home located less than one quarter mile from the landfill and 300 yards from Bloody Run Creek since 1925. John and Elaine Machelor resided during 1942-1968 and 1957-1968 respectively at homes whose yards abut Bloody Run Creek and are within one quarter mile from the landfill. Connlith Keogh has lived within one quarter mile from the landfill and 100 yards of the Bloody Run Creek since 1958.

These plaintiffs allege injuries which may be characterized as either manifest or latent. In the former category they seek recovery for allegedly known physical injuries said to have been caused by exposure to the toxins emanating from the landfill since 1953. The latter is concerned with injuries which have not surfaced but which may afflict them in the future. They allege that their exposure has increased their risk of developing cancer and other chemically induced diseases, and in their complaint seek as a remedy the imposition of a constructive trust upon the property owned by defendants in an amount sufficient to pay for the cost of medical detection services made necessary by the increased hazards, reserving the right to seek damages for such enhanced risks.

The proposed class is defined by its "mass exposure to environmental offenses" and consists of all who have been exposed to the toxic wastes dumped at the site. Plaintiffs estimate that there are at least 2,855 persons residing at the present time in the nine square mile area impacted or affected by the landfill. This number was determined through use of a map of the geographical pattern of dust deposition from the landfill prepared in 1982 by the New York State Department of Conservation in conjunction with the Department of Health. Dr. Erwin D.J. Bross, Director of Biostatistics at Roswell Park Memorial Institute, Buffalo, New York alleges in an affidavit that persons exposed to toxic chemicals run the risk of suffering "invisible genetic damage which can lead to a variety of adverse health effects at future times, possibly 20 years later." He states that they may suffer a "minute biochemical lesion * * * in the complex double-helix of human DNA in the nucleus of the cell * * * a long and involved biological process that leads to cancer or other health effects." "The identifiable class of persons here (who have suffered this genetic damage)", states Dr. Bross, "are those who because of proximity to the Bloody Run or Hyde Park landfills would have an increased risk of exposure to toxic chemicals and consequently an increased risk of invisible genetic damage." He acknowledges, however, that although "in a general sense the identification of the class of persons is geographic * * * distance is not the only factor, since the kinds of toxic and routes of dispersion are also important (though not fully known)". Furthermore, he finds it "hard to say with precision" how many people are likely to be in the class and states that "at this time the individuals in the class at risk who have sustained the genetic damage are not identifiable". Dr. Bross proposes that any remedy "should provide that when the invisible genetic damage becomes visible, the persons involved in the class action should have immediate, free access to such medical care as they wish to have", and that "there should be 'surveillance' of the population at risk in the public health sense of this word" so that care may be provided "at an early enough stage minimize the impact of the disease".

Defendants adduced no medical proof of their own, but argued that Dr. Bross' proposed definition of the class is unsatisfactory because of his inability, at least at this stage of the litigation, to identify the at-risk population with any degree of certainty. They claimed that class treatment is not only inappropriate but impossible, since liability and damage cannot be established without extensive and individualized proof to establish a nexus between the exposure to the toxic wastes and any alleged injury. As far as the claim for medical monitoring is concerned, defendants argued that this too is subject to individualized proof, since plaintiffs must show that their exposure occurred under circumstances which render defendants liable for any damage suffered, and that the exposure was of such a nature and duration that, when considered in light of the genetic and medical history of each claimant and other relevant factors relating to the claimant's work and lifestyle, medical surveillance is reasonably required.

Special Term addressed itself to the proposed certification of two classes: one to encompass claims for "allegedly known injuries", and the other for claims for "potential injuries which the unknown individuals may be afflicted with in the future". As to the former, Special Term found that the class is not so large as to make joinder impracticable, that common questions of law and fact do not predominate over individual ones, that the claims are not typical of all segments of the purported class and that the plaintiffs in the other pending actions have an apparent interest in pursuing their own strategies and tactics. We find no error in this decision and affirm that part of the order for the reasons stated by Special Term in its memorandum-decision.

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