In re Tennessee Valley Auth. Ash Spill Litig.

• Decision Date: 02 August 2011
• Docket Number: 3:09–CV–009,3:09–CV–504,3:09–CV–551,3:09–CV–517,3:09–CV–597,3:09–CV–550,3:09–CV–570,3:09–CV–579,3:09–CV–491,3:09–CV–497,3:09–CV–571,3:09–CV–564,3:09–CV–595,3:09–CV–582,3:09–CV–554,3:09–CV–604,3:09–CV–594,3:09–CV–553,3:09–CV–568,3:09–CV–596,3:10–CV–190,3:09–CV–581,3:09–CV–593,3:09–CV–572,3:09–CV–054,3:09–CV–495,3:09–CV–529,3:09–CV–064,3:10–CV–191,3:10–CV–189,3:09–CV–555,3:09–CV–048,3:09–CV–496,3:09–CV–578,Nos. 3:09–CV–006,3:09–CV–589,3:09–CV–591,3:09–CV–569,3:09–CV–114,3:09–CV–565,3:09–CV–577,3:09–CV–592,3:09–CV–566,3:09–CV–605,3:09–CV–576,3:09–CV–014,3:09–CV–584,3:09–CV–590,3:09–CV–603,3:09–CV–602,3:09–CV–583.,3:09–CV–580,3:09–CV–563,s. 3:09–CV–006
• Citation: 805 F.Supp.2d 468
• Parties: In re TENNESSEE VALLEY AUTHORITY ASH SPILL LITIGATION.
• Court: U.S. District Court — Eastern District of Tennessee

805 F.Supp.2d 468

In re TENNESSEE VALLEY AUTHORITY ASH SPILL LITIGATION.

Nos. 3:09–CV–006

3:09–CV–555

3:09–CV–584

3:09–CV–009

3:09–CV–563

3:09–CV–589

3:09–CV–014

3:09–CV–564

3:09–CV–590

3:09–CV–048

3:09–CV–565

3:09–CV–591

3:09–CV–054

3:09–CV–566

3:09–CV–592

3:09–CV–064

3:09–CV–568

3:09–CV–593

3:09–CV–114

3:09–CV–569

3:09–CV–594

3:09–CV–491

3:09–CV–570

3:09–CV–595

3:09–CV–495

3:09–CV–571

3:09–CV–596

3:09–CV–496

3:09–CV–572

3:09–CV–597

3:09–CV–497

3:09–CV–576

3:09–CV–602

3:09–CV–504

3:09–CV–577

3:09–CV–603

3:09–CV–517

3:09–CV–578

3:09–CV–604

3:09–CV–529

3:09–CV–579

3:09–CV–605

3:09–CV–550

3:09–CV–580

3:10–CV–189

3:09–CV–551

3:09–CV–581

3:10–CV–190

3:09–CV–553

3:09–CV–582

3:10–CV–191

3:09–CV–554

3:09–CV–583.

United States District Court, E.D. Tennessee.

Aug. 2, 2011.

MEMORANDUM OPINION AND ORDER

THOMAS A. VARLAN, District Judge.

This litigation consists of the more than fifty above-captioned cases filed against defendant Tennessee Valley Authority (“TVA”) following the December 22, 2008 failure of a coal ash containment dike at TVA's Kingston Fossil plant in Roane County, Tennessee (the “KIF plant”). Before the Court are TVA's Motions for Summary Judgment on Plaintiffs' Tort and Inverse Condemnation Claims on Grounds of No Causation (the “No Causation Motions”) [Doc. 221].¹

In the No Causation Motions [Doc. 221], TVA has moved for summary judgment on plaintiffs' tort and inverse condemnation claims on grounds of no causation. In opposition, plaintiffs have submitted five separate response briefs: the Chesney brief [ Chesney, et al. v. TVA, Case No. 3:09–CV–09, Doc. 266]; the Turner brief [ Turner, et al. v. TVA, Case No. 3:09–CV–495, Doc. 62]; the Armes brief [ Armes, et al. v. TVA, Case No. 3:09–CV–491, Doc. 49]; the Mays brief [ Mays v. TVA, Case No. 3:09–CV–06, Doc. 113]; and the Daugherty brief [ Daugherty, et al. v. TVA, Case No. 3:10–CV–189, Doc. 34].² In the Turner, Armes, Mays, and Daugherty briefs, plaintiffs also state their intent to adopt and incorporate the response briefs filed by the other plaintiffs. TVA has filed a consolidated reply brief to plaintiffs' response briefs [Doc. 289]. TVA has also filed reply briefs addressing unique issues and arguments in several of the individual cases [ Turner, Doc. 66; Armes, Doc. 50; Mays, Doc. 117; Daugherty, Doc. 35]. TVA also filed a supplemental brief [Doc. 338], to which plaintiffs filed responses [Doc. 340; Turner, Doc. 82; Armes, Doc. 57].

For the reasons set forth herein, TVA's No Causation Motions will be GRANTED in part and DENIED in part.

I. Relevant Factual and Procedural Background ³

Following the dike failure and coal ash spill at the KIF plant on December 22, 2008, plaintiffs filed the above-captioned cases against TVA.⁴ In the complaints, plaintiffs allege that they reside, own property, and/or own businesses within the vicinity of the ash spill. While not identical, the complaints assert similar allegations and tort law causes of action— e.g., negligence, negligence per se, gross negligence, trespass, nuisance, and strict liability. Several plaintiffs request that TVA be ordered to fund medical monitoring and several plaintiffs allege claims for inverse condemnation. Plaintiffs are seeking compensatory damages and/or injunctive relief. Four of the above-captioned cases are set for trial in September 2011.⁵ The remainder of the above-captioned cases are set for trial in November 2011.

In April 2009, TVA filed motions to dismiss or for summary judgment on grounds that the federal discretionary function doctrine applies to TVA and requires dismissal or summary judgment in TVA's favor on all plaintiffs' tort claims (“the Discretionary Function Motions”) [ see Doc. 46]. On March 26, 2010, the Court ruled on these motions, finding that the discretionary function doctrine applies to TVA and protects TVA's conduct that was grounded in considerations of public policy and involved the permissible exercise of policy judgment. See Mays v. TVA, 699 F.Supp.2d 991, 1016, 1019 (E.D.Tenn.2010). On July 16, 2010, TVA filed motions for summary judgment on plaintiffs' tort claims on the nondiscretionary conduct issue (the “Nondiscretionary Conduct Motions”). On September 17, 2010, TVA filed the No Causation Motions [Doc. 221]. On March 24, 2011, the Court denied in part and granted in part the relief sought by TVA in the Nondiscretionary Conduct Motions [Doc. 319]. See In re TVA Ash Spill Litig., 787 F.Supp.2d 703, 2011 WL 1113425 (E.D.Tenn. Mar. 24, 2011).

The Court now turns to the No Causation Motions. In these motions, TVA asserts that plaintiffs have failed to demonstrate that actionable, nondiscretionary conduct by TVA caused plaintiffs' alleged injuries and damages. TVA argues that plaintiffs have failed to demonstrate causation with respect to their personal injury and emotional distress claims, their property-related claims of trespass and nuisance and their inverse condemnation claims. In response, plaintiffs assert that they have demonstrated causation and that genuine issues of material fact exist as to each claim. Plaintiffs also assert that summary judgment is inappropriate at this time and request that the Court deny TVA's motions pursuant to Federal Rule of Civil Procedure 56(f) to allow plaintiffs sufficient time to conduct more discovery.

II. Standard of Review

A court may grant summary judgment only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Moore v. Philip Morris Cos., 8 F.3d 335, 339 (6th Cir.1993). The Court views the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir.2002). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The genuine issue must also be material. That is, the issue must involve facts that might affect the outcome of the suit under the governing law. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.

The Court's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper question for the finder of fact. Id. at 250, 106 S.Ct. 2505. The Court does not weigh the evidence or determine the truth of the matter. Id. at 249, 106 S.Ct. 2505. Nor does the Court search the record “to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir.1989). Thus, “the inquiry performed is the threshold inquiry of determining whether there is a need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505.

III. AnalysisA. Request to Deny Summary Judgment Pursuant to Rule 56(f)

Plaintiffs have requested that the Court deny the No Causation Motions to provide plaintiffs sufficient time to conduct more discovery to respond to TVA's motions. Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, plaintiffs in Chesney assert that more time is needed for discovery and to gather additional evidence to dispute and confirm various facts relevant to TVA's motions and plaintiffs' arguments [ see Doc. 267]. Plaintiffs assert that additional evidence will show that coal ash is present on plaintiffs' properties, that the coal ash spill caused plaintiffs to suffer a nuisance, and that toxic constituents from coal ash are present throughout the Watts Bar Reservoir (the “Reservoir”), the surrounding waterways, the shoreline strip, and in the air. TVA opposes plaintiffs' requests.

When a summary judgment motion is filed, the party opposing the motion may, by affidavit under Rule 56(f), explain why he or she is unable to present facts essential to justify the party's opposition to the motion. See Fed. R. Civ. Pro. 56(f); Wallin v. Norman, 317 F.3d 558, 564 (6th Cir.2003). “The burden is on the party seeking additional discovery to demonstrate why such discovery is necessary.” Summers v. Leis, 368 F.3d 881, 887 (6th Cir.2004). Bare allegations or vague assertions of the need for additional time for discovery are not enough. United States v. Cantrell, 92 F.Supp.2d 704, 717 (S.D.Ohio 2000) (citing Lewis v. ACB Bus. Serv., Inc., 135 F.3d 389, 409 (6th Cir.1998)). The U.S. Court of Appeals for the Sixth Circuit has found that a party must make such a request with “ ‘some precision’ ” and must state “the materials he hopes to obtain with further discovery, and exactly how he expects those materials would help him in opposing summary judgment.” Summers, 368 F.3d at 887 (quoting Simmons Oil Corp. v. Tesoro Petroleum Corp., 86 F.3d 1138, 1144 (Fed.Cir.1996)).

The dike failure and ash spill occurred on December 22, 2008. It is now more than two years since the spill and the filing of the first cases in this litigation. At the time TVA filed the No Causation Motions, and throughout the briefing of these motions, neither the clean-up from the spill nor discovery in these cases was complete, but both have been ongoing since the filing of the first case. In addition, all discovery has been made available to all parties. Plaintiffs have also requested and been granted a number of extensions to file responses to motions and to extend various deadlines. Furthermore, nothing has prevented the parties from filing supplemental briefs regarding the matters...