In re Pfohl Bros. Landfill Litigation, 95-CV-0020A.
| Decision Date | 27 October 1998 |
| Docket Number | No. 95-CV-0020A.,95-CV-0020A. |
| Citation | 26 F.Supp.2d 512 |
| Parties | In re PFOHL BROTHERS LANDFILL LITIGATION. This Document Relates to All Actions. |
| Court | U.S. District Court — Western District of New York |
Baron & Budd, P.C. (Frederick M. Baron, of counsel), Dallas, TX, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP (Laraine Kelley, of counsel), Buffalo, NY, for Plaintiffs.
Nixon, Hargrave, Devans & Doyle LLP (Laurie Styka Bloom, of counsel), Buffalo, NY, for Liason Group, Defendants.
This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1), on February 16, 1996. On June 10, 1997, defendants filed a motion for partial summary judgment. On March 11, 1998, Magistrate Judge Foschio filed a Report and Recommendation, recommending that: (1) defendants' motion for partial summary judgment be granted in part and that the survival actions pertaining to decedents Anthony J. Marino, Isabelle A. Wiedenbeck and Joseph J. Wiedenbeck be dismissed; (2) summary judgment be denied as to the survival actions of Mary Jane Farino, Robert L. Farino, Stephen C. Grandillo, Nelson M. Hirsch, Henry A. Kuczka, George Pagels and Leo N. Phillips; (3) the survival and wrongful death actions commenced on behalf of Evo T. Astor, Charles W. Batt, Rose E. Batt, Loraine E. Brezezicki, Gretchen A. Heaney, Joseph A. Inzinnia, Robert A. Martzolf, Vincent J. Mongiovi, Alfred G. Mucha and Mary M. Sturm, decedents for whom no personal representative had been duly appointed prior the action being filed, be dismissed with leave to renew; (4) summary judgment as to the remaining wrongful death actions be denied; (5) summary judgment as to the punitive damages claims be granted in part and denied in part; and (6) summary judgment as to the claims for loss of consortium be denied.
On April 24, 1998, plaintiffs Irene M. Marino and Joseph J. Wiedenbeck filed objections to the Report and Recommendation. Defendants also filed objections to the Report and Recommendation on April 24, 1998. Oral argument on the objections was held on September 20, 1998.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation.
Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation: (1) defendants' motion for partial summary judgment is granted in part and the survival actions pertaining to decedents Anthony J. Marino, Isabelle A. Wiedenbeck and Joseph J. Wiedenbeck are dismissed; (2) summary judgment is denied as to the survival actions of Mary Jane Farino, Robert L. Farino, Stephen C. Grandillo, Nelson M. Hursch, Henry A. Kuczka, George Pagels and Leo N. Phillips; (3) the survival and wrongful death actions commenced on behalf of Evo T. Astor, Charles W. Batt, Rose E. Batt, Loraine E. Brezezicki, Gretchen A. Heaney, Joseph A. Inzinnia, Robert A. Martzolf, Vincent J. Mongiovi, Alfred G. Mucha and Mary M. Sturm, decedents for whom no personal representative had been duly appointed prior to the action being filed, are dismissed with leave to renew; (4) summary judgment as to the remaining wrongful death actions is denied; (5) summary judgment as to the punitive damages claims is granted in part and denied in part; and (6) summary judgment as to the claims for loss of consortium is denied.
This case is referred back to Magistrate Judge Foschio for further proceedings.
IT IS SO ORDERED.
REPORT and RECOMMENDATION
This case was referred to the undersigned by the Honorable Richard J. Arcara on February 16, 1996, for report and recommendation on all dispositive motions. It is presently before the court on Defendants' motion for partial summary judgment (Doc. # 288), filed June 10, 1997.
This action was commenced on January 10, 1995, by the filing of the first of seven essentially identical complaints on behalf of sixty-seven plaintiffs, suing on behalf of themselves or their respective decedents, in which Plaintiffs seek monetary damages including punitive damages from Defendants for injuries or deaths from various cancers which they contend were caused by exposure to hazardous and toxic substances from the Pfohl Brothers Landfill located in Cheektowaga, New York (the "Landfill").1 The death actions were filed by the widows, widowers, children or estate representatives of decedents. Plaintiffs allege that they or their decedents lived, worked or engaged in recreational activity in the vicinity of the Landfill and that Defendants either owned and operated the Landfill or were otherwise responsible for the generation or transportation of the hazardous substances to the Landfill. Plaintiffs' claims are based on state law negligence, strict liability, gross negligence, loss of consortium, and wrongful death.
The instant motion seeks summary dismissal of the survival actions and wrongful death claims asserted on behalf of twenty decedents, most of which would be time-barred under New York law. Plaintiffs urge that these claims are timely under the provision of the Comprehensive Environmental Response, Compensation and Liability Act of 1980. 42 U.S.C. § 9601 et seq., ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 100 Stat. 1613, , § 309, 42 U.S.C. § 9658, which preempts the accrual date for state law toxic tort actions based on exposure to hazardous substances released into the environment by facilities as defined by CERCLA, permitting such claims to accrue upon the discovery of the cause of the injury.2 Defendants maintain that that CERCLA provision is inapplicable to the instant claims or that it is unconstitutional.
On February 16, 1996, Defendants were granted a period of discovery limited to their statute of limitations defense. On June 11, 1997, Defendants filed a motion for partial summary judgment seeking dismissal of the survival and wrongful death actions on behalf of twenty decedents and the consortium claims on behalf of eight surviving spouses as time-barred under the applicable New York statutes of limitations and challenging the applicability and constitutionality of 42 U.S.C. § 9658.3 Plaintiffs responded on July 11, 1997 and Defendants replied on July 25, 1997. Oral argument was deemed unnecessary.
For the reasons which follow, Defendants' motion for partial summary judgment should be GRANTED in part, and DENIED in part.
The 120 acre Pfohl Brothers Landfill ("the Landfill"), located in the northeastern corner of the town of Cheektowaga, New York, a suburban area adjacent to the City of Buffalo, is listed on the New York State Registry of Active Hazardous Waste Disposal Sites, indicating that the state considers the Landfill to be a public health threat. Many industrial wastes including hazardous substances were deposited into the Landfill between 1932 and 1969. Aero Lake is adjacent to the northwestern corner of the Landfill. Ellicott Creek runs within a few hundred feet of the Landfill and is fed by three tributaries which flow through the Landfill. Ellicott Creek empties into the Niagara River, an international waterway flowing between the United States and Canada.
Plaintiffs in this action have filed claims based on state law negligence, strict liability, gross negligence, loss of consortium, and wrongful death for injuries or deaths to their respective decedents whose deaths they contend were caused by exposure to hazardous and toxic substances in the Landfill. Defendants are the alleged owners and operators of the Landfill; the Third-Party Defendants assertedly generated and transported the hazardous and toxic substances to the Landfill.5 According to Plaintiffs, Defendants' negligence is based upon Defendants' failure to take adequate precautionary measures to properly contain and prevent the hazardous substances deposited into the Landfill from escaping and migrating out of the Landfill and its surrounding area where Plaintiffs and their decedents resided. Plaintiffs allege exposure occurred through contact with the ambient air and ground water when their decedents lived, worked or engaged in recreational activity in the vicinity of the Landfill.
Among the toxic substances allegedly deposited in the Landfill are polychlorinated biphenol ("PCB") oils, acetone, trichloroethane, 3-tricloroethane, perchloroethylene, trichloroethylene, tetrachloroephylene, coolant oil, paint treatment, waste cutting oils, degreasing materials, hydraulic oil, waste paint, industrial wastes, fluorinated solvent waste, cobalt, mercury, toluene, vinyl toluene, benzene, xylene, methylene fluoride, lead, lead driers, calcium, cadmium, zinc oxide, curing sulfur, dry metal dust, sand blast grit, foundry wastes, pine tar pitch, pickling solutions, titanium tetrachloride, polyvinyl alcohol film wastes, polyvinyl chloride, naptha, mek, waste inks, heavy metal wastes, paint thinners, paint solvents, industrial solvents, zirconium sludge, phenolic sludges, and paint sludges such as zinc, tin, chrome, iron, nickel, copper, asbestos, phenol, and fly ash.
Defendants who operated manufacturing facilities within the Western New York region and who it is alleged negligently released and disposed of hazardous substances into the Landfill include Westinghouse Electric Corporation during the years 1946 through 1969. General Motors Corporation from the 1950's through 1968, Curtiss-Wright Corporation during the years 1947 through 1966, W.S. Tyler, Incorporated, as successor in interest to Hewitt-Robbins Corp., during the 1950's and 1960's, Laidlaw Waste Systems, Inc., individually,...
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