Jones v. Evonik Corp.
| Decision Date | 10 August 2022 |
| Docket Number | Civil Action 22-1522 |
| Parties | GENEIVA JONES v. EVONIK CORPORATION, ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
ORDER & REASONS
Before the Court is defendant Shell Oil Company's (“Shell”) Rule 12(b)(6) motion[1] to dismiss. Also before the Court is defendant Evonik Corporation's (“Evonik”) Rule 12(b)(6) motion[2] to dismiss or alternatively, Rule 12(e) motion for a more definite statement. Plaintiff Geneiva Jones (“plaintiff”) opposes[3] both motions. For the reasons that follow the Court will deny both motions.
This case arises out of alleged exposure to ethylene oxide (“EtO”) near a petrochemical plant in Reserve, Louisiana (the “Facility”), owned and operated by Evonik and Shell.[4] Shell owned and operated the Facility from 1991 until 1999,[5] and Evonik has owned and operated the Facility since that time.[6] On April 26, 2021, fourteen plaintiffs filed an action in the Civil District Court for St. John the Baptist Parish, alleging that inhalation of EtO emitted from the Facility was a substantial factor in causing plaintiffs' cancer, or their spouses' cancer.[7] On June 4, 2021, Evonik removed the case to federal court, contending that the Court has diversity jurisdiction under 28 U.S.C. § 1332.[8] The action was allotted to Section R.
On May 27, 2022, Judge Vance issued an Order and Reasons granting Shell's motion to dismiss in its entirety, on the grounds of prescription and the nonapplicability of contra non valentem. Ellis v. Evonik Corp., No. 21-1089, ___ F.Supp.3d ___, 2022 WL 1719196, at *8 (E.D. La. May 27, 2022) (Vance, J.). Judge Vance dismissed these claims as to Shell without prejudice, and she granted plaintiffs leave to amend their complaint to plead facts, specific to each plaintiff, to support the application of contra non valentem after their dates of diagnoses. Id. Judge Vance also granted in part and denied in part Evonik's motion to dismiss. Specifically, Judge Vance dismissed plaintiff's battery claims with prejudice. Id. at *16. Judge Vance denied the motion with respect to plaintiffs' continuing-tort claims under Louisiana's vicinage articles. Id. Judge Vance dismissed plaintiffs' negligence claim without prejudice, granting plaintiffs leave to amend as to that claim. Id.
Finally, Judge Vance, noting the significant factual variations between plaintiffs as to the nature and duration of their exposure and their types of cancer, concluded that a severance was warranted. Id. at *14. Plaintiff Jones' action was allotted to Section I, and plaintiff thereafter filed her amended complaint.[9]
The facts, as alleged in plaintiff's amended complaint, are as follows. EtO is an odorless, colorless gas used to make a range of products, including antifreeze, textiles, plastics, detergents and adhesives.[10] EtO is one of 187 pollutants that EPA has classified as “hazardous air pollutants” or “air toxics.”[11] “Scientific and industry studies show that long-term exposure to EtO increases the risk of cancers of the white blood cells[ ] including, but not limited to, non-Hodgkin lymphoma, myeloma, lymphocytic leukemia, and breast cancer.”[12] The World Health Organization and various federal agencies have classified EtO as a carcinogen.[13]
The Facility has emitted large volumes of EtO gas for several decades.[14] The EtO emitted by the Facility remains in the air for months, becomes concentrated in atmospheric inversions, and moves through neighboring communities through prevailing winds.[15] Because its half-life in the atmosphere is 211 days, EtO remains in the air near the Facility long after it has been emitted.[16] The Facility releases state-authorized amounts of EtO into the atmosphere, which are nevertheless dangerous to persons working and living near the Facility, as set forth in greater detail below.[17] The Facility also releases unauthorized amounts of EtO into the air and water.[18] Such unauthorized releases are called “fugitive releases,” and they are caused by undetected and unrepaired leaks and faulty equipment, among other things.[19] Fugitive EtO emissions from the Facility have dramatically increased the volume of EtO in the atmosphere around the Facility and in the surrounding community, “including just by way of example, multiple unauthorized releases of EtO in 2012 and 2013 that may have led to as much as 1950 lbs. of EtO being released into the atmosphere according to the facility, which is approximately the same amount of planned emissions that were released those years such that the fugitive emissions doubled the amount of EtO in the air.”[20]
In August 2018, the Environmental Protection Agency (“EPA”) released the results of the 2014 National Air Toxics Assessment (“2014 NATA”).[21] The 2014 NATA estimated concentrations of airborne toxins and population exposure, and it calculated the associated risks of cancer and other serious health problems.[22] The assessment revealed that individuals living in census tracts around the Facility, including plaintiff, have some of the highest risks of cancer from EtO exposure in the country.[23]
The 2014 NATA results were not communicated to any lay persons and the citizens of St. John the Baptist Parish.[24] The EPA Office of Inspector General (“OIG”) issued a management alert in March 2020 that called on the EPA and state and local officials to provide information about EtO to impacted residents who faced increased and “unacceptable” risks of cancer from certain facilities' EtO emissions, specifically including the Evonik Facility.[25] The 2020 OIG alert called on the EPA to conduct risk assessments of the identified facilities, including Evonik's, and to develop new emissions standards for facilities emitting EtO that are creating unreasonable risks for surrounding communities.[26] The EPA's assessment confirmed that individuals living near the Evonik Facility have a risk of developing cancer that is eight times what the EPA considers to be “acceptable.”[27]
Despite the OIG's 2020 alert, there was no public awareness initiative or campaign by the defendants or any government agency to educate the community until 2021, when the first public outreach meeting was organized by the EPA to inform local residents they face an increased risk of developing cancer from Evonik's EtO emissions.[28] At that meeting, the EPA explained that, notwithstanding the fact that Evonik has decreased its EtO emissions from 2014 to 2020 by nearly 50%, the levels emitted were still not “sufficiently protective of human health” according to EPA guidelines and standards, even though they were within permitted limits, pursuant to state law.[29]
With respect to Evonik's claimed reduction in levels of EtO emissions from 2014 to 2020, the decrease in EtO emitted into the ambient air was mostly attributable to the Facility reducing “fugitive” EtO emissions, i.e., unplanned emissions caused by leaks in equipment, faulty processes, and accidents.[30] According to the EPA, Evonik was able to reduce unplanned fugitive emissions by 92% from 2014 to 2020, mostly as a result of improvements to the Facility's mandated leak detection and repair program (“LDAR”).[31]
Plaintiff has lived within a mile of the Facility for 48 years.[32] She is 70 years old, and she was diagnosed with breast cancer in 2016.[33] She further alleges:
No physician ever advised Plaintiff that Plaintiff's cancer may have been caused by exposure to EtO .... Plaintiff did not know anything about EtO to ask the physicians any questions about her exposure, which was also unknown to her at the time, and cancer. Plaintiff did not know that Plaintiff was exposed to dangerous amounts of EtO since it is colorless and odorless and Defendants have never advised the general public of the dangers of EtO. Plaintiff also had no knowledge of the operation of the Facility at any time, did not know that it emitted EtO, and did not know that the emissions of EtO were subject to regulation and the subject of scientific studies. Plaintiff has never had any education related to chemistry beyond high school studies. Plaintiff did not know how to research information related to operation of the Facility. The first time Plaintiff had any reason to think that EtO emission from the Facility was a substantial factor in causing Plaintiff's cancer was when Plaintiff received an advertisement in the mail from The Voorhies Law Firm on or after April 28, 2020 .... The receipt of the advertisement was the first time Plaintiff ever knew of the existence of EtO .... Thereafter Plaintiff took reasonable steps to investigate whether exposure to EtO had caused Plaintiff's cancer or created a risk of future health problems. Plaintiff filed this action within one year of learning facts supporting that she had a cause of action against Defendants.[34]
Pursuant to Rule 12(b)(6), a district court may dismiss a complaint or part of a complaint when a plaintiff fails to set forth well-pleaded factual allegations that “raise a right to relief above the speculative level.” Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007); see Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). The complaint “must contain sufficient factual matter accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 570). If the well-pleaded factual allegations “do...
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