Church v. General Elec. Co.

• Decision Date: 30 March 2001
• Docket Number: No. CIV. A. 95-30139MAP.,CIV. A. 95-30139MAP.
• Citation: 138 F.Supp.2d 169
• Parties: Caroline CHURCH, et al., Plaintiffs v. GENERAL ELECTRIC COMPANY, Defendant
• Court: U.S. District Court — District of Massachusetts

Page 169

138 F.Supp.2d 169

Caroline CHURCH, et al., Plaintiffs v. GENERAL ELECTRIC COMPANY, Defendant

No. CIV. A. 95-30139MAP.

United States District Court, D. Massachusetts.

March 30, 2001.

Cristobal Bonifaz, John Bonifaz, Amherst, MA, Martin J. D'Urso, Michael J. Boni, Joseph C. Kohn, Neil L. Glazer, Kohn, Swift & Graf, P.C., Philadelphia, PA, for Caroline Church, Dorothy Cohen, Thomas Ferguson, Frances Ferguson, Margaret Lewis, Abby Kramer Mayou, Gerald Reder, Patricia Reder, Gwendolyn Sears, Tim Smith, Nancy Smith, Mildred L. Zimmerman Trust, the, individually and on behalf of all others similarly situated, Plaintiffs.

Paul F. Ware, Jr., James W. McGarry, Gregory A. Bibler, Dana L. McAlister, Goodwin Procter LLP, Boston, MA, Robert J. Shaughnessy, Steven R. Kuney, Williams & Connolly, Washington, DC, for General Electric Company, Defendant.

John D. Beling, Assist. Atty. Gen., Environmental protection Div., Boston, MA, for Commonwealth of Mass., movant.

MEMORANDUM REGARDING DEFENDANT'S SECOND MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS' RENEWED MOTION FOR CLASS CERTIFICATION

PONSOR, District Judge.

(Docket Nos. 164 and 159)

I. INTRODUCTION

In this diversity action, plaintiffs seek damages and injunctive relief against General Electric Company ("GE") for the contamination of their lands with polychlorinated biphenyls ("PCBs"), a probable human carcinogen. The named plaintiffs own properties in Pittsfield and Lenox, Massachusetts that lie within the floodplain of the Housatonic River. They allege that for many years General Electric dumped waste containing PCBs into the land surrounding its plant in Pittsfield, and that the contaminants continue to seep from GE's land into the river and thence downstream onto plaintiffs' properties. Defendant seeks summary judgment on all counts of plaintiffs' complaint, while plaintiffs seek certification of a class to assert claims for property devaluation and injunctive relief against General Electric.

The court is not unfamiliar with this controversy, for this is the second motion for summary judgment that has been briefed in this nearly six-year-old case. In March of 1997, the court held that plaintiffs' claims were time-barred with respect to damage that occurred before July 1992, but allowed plaintiffs to proceed to the extent they could show that actionable conduct after July 1992 has caused continued deposits of PCBs onto their properties. See Memorandum Regarding Defendant's Motion for Summary Judgment, Docket No. 60. Pursuant to Fed.R.Civ.P. 56(d), the court deferred its ruling to allow facts and arguments regarding the "continuing tort" concept to be developed. Id.

Now, after more extensive discovery, defendant moves again for summary judgment, averring that plaintiffs' claims fail as a matter of law, and in the alternative that they have not produced sufficient evidence of a continuing nuisance or trespass to survive summary judgment. Plaintiffs oppose the motion, and seek certification of a class made up of residential land owners in the Housatonic floodplain to recover for property devaluation caused by the continuing nuisance and trespass.

The court will allow defendant's motion in part and deny it in part. Summary judgment will be allowed on the counts of the complaint alleging negligence, strict liability, and violation of the Massachusetts Oil and Hazardous Waste Release Prevention Act, Mass. Gen. Laws ch. 21E. Plaintiffs have, however, demonstrated enough in the way of actionable conduct and continued harm within the limitations period to sustain their claims for continuing nuisance and trespass. Plaintiffs' motion for class certification will be denied because the individual issues posed in this matter are not sufficiently outweighed by common issues to make this case suitable for class certification under Fed.R.Civ.P. 23(b)(3).

II. BACKGROUND

A. PCBs in the Housatonic

The Housatonic River begins at a small pond in the town of Washington in the northern reaches of Berkshire County, the westernmost county of Massachusetts. The river runs south nearly the width of the state, dividing the county lengthwise. Apart from the Berkshire mountain range, the rolling hills for which the county is named, the Housatonic River is the central feature of the region, one long known for its spectacular natural beauty. In 1835, Frances Anne Kemble, a celebrated English actress and early Berkshire personality, described the setting:

A "Happy Valley" indeed! — The Valley of the Housatonic, locked in by walls of every shape and size, from grassy knolls to bold basaltic cliffs. A beautiful little river wanders singing from side to side in this secluded Paradise, and from every mountain cleft come running crystal springs to join it; it looks only fit for people to be baptized in (though I believe the water is used for cooking and washing purposes).

Frances Anne Kemble, Letter, 1835, excerpted in THE BERKSHIRE READER 145 (Richard Nunley, ed., 1992).

In 1903, the General Electric Company began manufacturing electrical transformers in a plant on the banks of the Housatonic in Pittsfield, Massachusetts. The Pittsfield plant soon became the world's largest transformer factory, employing over 10,000 workers in 1950. By the 1960s, the plant had swelled to include naval ordinance, tank transmission assembly, and plastics manufacturing plants in addition to its transformer facility, and the payroll had increased to about 14,000. "The influence of G.E. in Pittsfield," noted the Saturday Evening Post in 1950, "is immense," and the plant is the force "on which, in the main, the city's prosperity depends." Henry F. Pringle & Katharine Pringle, The Cities of America: Pittsfield, Mass., SATURDAY EVENING POST, Apr. 29, 1950, at 40.

In 1932, General Electric developed and started using a chemical called Pyranol as an insulating agent in its transformers. Pyranol was made from PCBs, now considered a human carcinogen. The chemicals are linked to skin cancer, liver cancer, brain cancer, intestinal cancer, bladder cancer, leukemia, birth defects in humans and animals, and other health problems. See Estate of Sarocco v. General Elec. Co., 939 F.Supp. 91, 94 (D.Mass.1996); JOHN HARTE ET AL., TOXICS A TO Z 383 (1991). Humans can absorb the chemicals through skin contact, inhalation or ingestion. Id. One of the chief dangers of PCBs is their durability — they are resistant to breakdown and therefore tend to remain in the environment and in living tissue longer than other toxins. Although the possible toxic effects of PCBs were known as early as the 1930s, the chemicals were not highly regulated until 1977, when Congress passed the Toxic Substances Control Act, 15 U.S.C. § 2605(e) (prohibiting, inter alia, manufacture of products containing PCBs except in "totally enclosed manner").

As the health risks of PCBs became apparent, the city of Pittsfield began to realize that years of waste disposal practices by GE had contaminated the company's site with PCBs. Through at least the 1960s, General Electric dumped waste oil containing PCBs into the land around its plant and into the Housatonic River. The contamination began to cause grave health concerns among the people of Pittsfield. As early as 1971, the Berkshire Eagle reported that Pyranol was a potential health hazard, and that "leakage from GE's old underground oil system [had] saturated the ground and was a major cause of pollution to the Housatonic River. Some of that leakage was Pyranol...." Richard K. Weil, Health Peril Seen in GE Transformer Oil, BERKSHIRE EAGLE, Sept. 23, 1971, at 1.

The contamination of Pittsfield and the Housatonic also began to spawn litigation, in this court and elsewhere. The first lawsuit regarding PCBs in the Housatonic River was filed in 1977, in the U.S. District Court in Connecticut. See Housatonic River v. General Elec. Co., 462 F.Supp. 710 (D.Conn.1978). A second action, one much like the instant case, was filed in 1979 by riverbank landowners in Connecticut, seeking damages in nuisance and trespass for property devaluation. See Ruland v. General Elec. Co., 94 F.R.D. 164 (D.Conn.1982).

State governments and regulatory agencies soon intervened, as well. In 1981, GE entered into a consent order with the Massachusetts Department of Environmental Quality Engineering to ensure its cooperation in the further study of the PCB problem. Delays, however, prevented the allocation of significant resources for cleaning up the Housatonic until September 24, 1998, when General Electric, the EPA, and the states of Massachusetts and Connecticut agreed in principle to a massive joint remediation effort on the river. On October 27, 2000, this court entered a consent decree between GE, the United States, and the states of Massachusetts and Connecticut that launched a $300 to $700 million cleanup effort, the bulk of which will be paid for by General Electric.

B. Background of this Case

Plaintiffs filed this action on July 3, 1995. The plaintiffs, landowners in Pittsfield and Lenox, Massachusetts, allege that PCBs released from the General Electric plant in Pittsfield have contaminated the Housatonic River and then washed up onto their properties, causing the properties to lose value. Early in the case, pursuant to counsel's request, the court addressed defendant's statute of limitations defense on an expedited basis after limited discovery. In 1997, the court held that plaintiffs could not recover for any damage sustained prior to three years before the date of suit, July 3, 1992. Any reasonable person in plaintiffs' position, the court held, would have known of the contamination of the Housatonic River and its likely source prior to July 3, 1992. However, the court held that facts and arguments remained to be developed as to whether plaintiffs could establish a continuing tort. See Memorandum Regarding Defendant's Motion for Summary Judgment, Docket No. 60, at 10-13. Now, after more extensive discovery, defendan...