Blanton v. Cooper Industries, Inc.

• Decision Date: 29 March 2000
• Docket Number: No. CIV. A. 97-503.,CIV. A. 97-503.
• Citation: 99 F.Supp.2d 797
• Parties: Kaye BLANTON, et al., Plaintiffs, v. COOPER INDUSTRIES, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

99 F.Supp.2d 797

Kaye BLANTON, et al., Plaintiffs, v. COOPER INDUSTRIES, INC., et al., Defendants.

No. CIV. A. 97-503.

United States District Court, E.D. Kentucky.

March 29, 2000.

Donna Keene Holt, Knoxville, TN, Charles L. Cunningham, Jr., Louisville, for Kaye Blanton, Terry Lee Farley, plaintiffs.

Harry K. Herren, Jill F. Lowenbraun, Woodward, Hobson & Fulton, Louisville Clifford J. Zatz, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, for Cooper Industries, Inc., McGraw Edison Company, defendants.

MEMORANDUM OPINION AND ORDER

COFFMAN, District Judge.

This matter is before the court upon the defendants' motion for summary judgment [Record No. 35] and the plaintiffs' motion to strike affidavits of William Redwine and Paul R. Lees-Haley, Ph.D. from the record [Record No. 40].

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Kaye Blanton, Lisa Tolliver as executrix of the Estate of Roger Allen Blanton, Sr., and Terry Farley filed this action against Cooper Industries, Inc. and McGraw Edison Company on October 16, 1997. The action relates to injuries allegedly arising out of contamination by the National Electric Coil ("NEC") plant near Dayhoit, Kentucky, which ultimately became a Superfund site.

Kaye Blanton was born in 1945 and lived in Harlan, Kentucky for her entire life. She never lived in Dayhoit, Kentucky. In 1965, she married Roger Blanton. Mr. Blanton was employed at the NEC plant from May 1970 through December 1976, where he allegedly was exposed to harmful chemicals. Mrs. Blanton was never employed at the plant but routinely washed Mr. Blanton's work clothes, which she claims exposed her to the chemicals from the plant. In July of 1996, Mrs. Blanton was diagnosed with breast cancer. Dr. Ahmad conveyed this diagnosis to Mrs. Blanton on July 9, 1996, and Dr. Bell confirmed the diagnosis on July 12, 1996. Mrs. Blanton died on May 29, 1998. Mr. Blanton was diagnosed with pancreatic cancer on October 23, 1996 and passed away on June 2, 1997.

Terry Farley was born in 1968 and has lived in Watts Creek in Harlan County for all but approximately a year of his life. He has never lived in Dayhoit, Kentucky. However, Farley lived within two miles of the NEC plant until 1997, when he moved to Loyall, Kentucky, also in Harlan County. He was diagnosed with lymphoma in August of 1978 when he was ten years old. After treatment, his doctors determined by 1980 that his cancer was in remission, and Farley has not had any recurrences since that time. He graduated from high school but asserts that he cannot read well and can write only simple words.

In February of 1989, Kentucky officials discovered that the groundwater wells adjacent to the NEC plant were contaminated. According to the defendants, after discovery of the contamination, Cooper Industries paid for and installed city water lines near the plant so that residents would no longer need to rely on the contaminated wells for their water. Between 1990 and 1992, over 500 plaintiffs filed actions in this court seeking damages relating to the contamination. Several actions were consolidated into what has been referred to as the "Robinett litigation," which went to trial in April of 1996. The Robinett litigation was settled in October of 1996, with payments being made to the plaintiffs in November of that same year. The Environmental Protection Agency established for the NEC plant a clean-up plan which has been in place since 1992.

According to the defendants, the contamination of the NEC plant, the Robinett litigation, and allegations that exposure to chemicals from the NEC plant caused cancer and other health concerns were the subject of widespread reports by local, regional, and national media. From 1989 through 1994, the controversy surrounding the NEC plant was the subject of over 80 articles in the local newspaper, the Harian Daily Enterprise, and 44 articles in three other regional newspapers. Many of these articles referred to cancer as a potential health hazard of the contamination.

The plaintiffs point out that when the media referred to the "Dayhoit community," Harlan County residents knew the exact location referred to and whether or not they were included. Harlan County is not one homogenous community that is synonymous with the "Dayhoit community." Rather, there are many distinct residential communities in Harlan County, and the residents know the distinctions and differences among Dayhoit, Fresh Meadows, Ewing Creek, White Star Hollow, Watts Creek, Tremont, Keith, and other community designations. According to the plaintiffs, none of the articles reported that the contamination had extended into the Watts Creek community. There was also no coverage of an alleged "air plume" that reached all of the communities mentioned above which resulted from the defendants' alleged practice of burning hazardous waste in an oil-fired boiler.

After the contamination came to light, Joan Robinett and others formed a local community group called Concerned Citizens Against Toxic Waste ("CCATW"). According to the defendants, CCATW held at least one demonstration warning of contamination by the NEC plant and was also responsible for addressing health hazards caused by the plant's operations, holding regular public meetings to discuss these issues. The U.S. Department of Health and Human Services' Agency for Toxic Substances and Disease Registry held a "public availability meeting" in Harlan in April of 1992. A subsequent report by the Department dated November 1994 addressed the community health concerns resulting from the contamination.

Joan Robinett and CCATW also conducted a survey of Harlan County residents titled the "Dayhoit Listening Project." The purpose of this survey was to gather information from people in Harlan County and to inform them that they could get assistance with medical problems related to the NEC plant contamination. Teams were trained to go door-to-door to community homes and personally interview residents by asking the questions on the survey, which related to the sources of residential water, contamination of the water, health problems related to the contamination, the community's desire for medical monitoring, etc. According to the plaintiffs, this survey was conducted in January of 1991 and did not extend into the Watts Creek community but was limited to the Dayhoit community.

Mrs. Blanton, who was awarded a business degree from Southeast Community College at Cumberland in 1967, testified that she was aware of and had generally followed the controversy regarding the nature and extent of contamination by the NEC plant in the Harlan Daily Enterprise since coverage began in 1989 or 1990. She testified that there was quite a bit of talk in the community in 1989 and 1990 about the contamination, the possible health effects, and the need to have city water piped into the Dayhoit community. She also testified that she was at least aware of some meetings in the community regarding the contamination and the Robinett litigation.

Farley testified in his deposition that Joan Robinett visited his family's home some time before August or September of 1997. The defendants contend that this visit was in connection with the Dayhoit Listening Project, but Farley understood that the purpose of Robinett's visit was to garner support for a water line to Watts Creek. Ms. Robinett spoke primarily with Farley's mother. He apparently signed some papers in connection with the survey but claims that he did not know what they were about.

According to the defendants, Farley has a number of relatives and friends in Harlan County, several of whom brought a lawsuit relating to the NEC plant contamination. However, Farley claims that none of these friends or relatives ever mentioned their lawsuits to him and that he knew nothing about the litigation or his family's or friends' involvement. Also according to the defendants, Farley participated in the "Shira Kramer study," which was commissioned by the plaintiffs in the Robinett litigation. The study indicates that individuals were ascertained by verification of exposure status via interview, and Farley's name appears as a participant in the study. Farley claims that he signed a medical release authorization but thought that it was connected to efforts to extend city water lines to Watts Creek, and that this was his only alleged "participation" in any study conducted by Shira Kramer.

II. MOTION FOR SUMMARY JUDGMENT

The defendants have filed a motion for summary judgment arguing (1) that Mrs. Blanton's and Farley's claims are barred by the applicable one-year statute of limitations, KRS § 413.140(1); and (2) that Mr. Blanton's claim is barred by the exclusive remedies provision of the Kentucky Workers' Compensation Law, KRS § 342.690. The court will address the issues presented in turn.

A. Statute of Limitations

The discovery rule was adopted in Kentucky in Tomlinson v. Siehl, 459 S.W.2d 166 (Ky.1970), a medical malpractice action. It was first applied to a cause of action involving a latent disease caused by exposure to a harmful substance in Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497 (Ky.1979), wherein a plaintiff was exposed to asbestos fibers in the course of his work. In the Johns-Manville case, the Kentucky Supreme Court adopted the following statement from New Hampshire's highest court:

"A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant's conduct."

Id. at 501 (quoting Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170, 174 (1977)) (emphasis supplied). This rule applies where the injury and the discovery of the causal relationship do not necessarily occur simultaneously. In Johns-Manville, for example, the plaintiffs injury manifested itself more than one year after...