Madej v. Athens Cnty. Eng'r Jeff Maiden

• Decision Date: 17 October 2018
• Docket Number: Case No. 2:16-cv-658
• Parties: CYNTHIA MADEJ, et al., Plaintiffs, v. ATHENS COUNTY ENGINEER JEFF MAIDEN, Defendant.
• Court: U.S. District Court — Southern District of Ohio

CYNTHIA MADEJ, et al., Plaintiffs, v. ATHENS COUNTY ENGINEER JEFF MAIDEN, Defendant.

Case No. 2:16-cv-658

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

October 17, 2018

CHIEF JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Chelsey M. Vascura

OPINION AND ORDER

This matter is before the Court on Plaintiffs Cynthia and Robert Madej's ("Ms. Madej," "Mr. Madej", or collectively, "Plaintiffs") Motion for Partial Summary Judgment (Pl.'s Mot. S.J., ECF No. 109), Defendant's memorandum in opposition (Def. Mem. Opp., ECF No. 119), Plaintiffs' Reply (Pl. Reply, ECF No. 135), Plaintiffs' motion in limine to exclude the testimony of Jonathan Raab (Pl. MIL, ECF No. 138), Defendant's response (Def. Response MIL, ECF No. 141), and Plaintiffs' Reply (Pl. Reply MIL, ECF No. 143). Also before the Court are Defendant's Motion for Summary Judgment (Def. Mot. S.J., ECF No. 117), Plaintiffs' memorandum in opposition (Pl. Mem. Opp., ECF No. 120), Defendant's Reply (Def. Reply, ECF No. 134), Defendant's motion in limine to exclude the testimony of Dr. John Molot (Def. MIL, ECF No. 106), Plaintiffs' response (Pl. Response MIL, ECF No. 126), Defendant's Reply (Def. Reply MIL, ECF No. 134), Defendant's motion in limine to exclude the testimony of Dr. Barbara Singer and Dr. Allan Lieberman (Def.'s MIL, ECF No. 107), Plaintiffs' response (Pl. Response MIL, ECF No. 125), Defendant's Reply (Def. Reply MIL, ECF No. 133); Defendant's motion in limine to exclude Plaintiffs' engineering experts (Def. MIL, ECF No. 108), Plaintiffs' response (Pl. Response MIL, ECF No. 124), and Defendant's Reply (Def. Reply MIL, ECF No. 132). Additionally, Defendant has filed a Motion for Leave to File a Sur-reply (Def. Mot. Sur-reply, ECF No. 140), Plaintiffs have filed a response (Pl. Response Sur-reply, ECF No. 144), and Defendant has filed a Reply (Def. Reply, ECF No. 145). The issues are joined and ripe for consideration. For the reasons that follow, Defendant's motions to exclude the opinions of Dr. John Molot (Def.'s MIL, ECF No. 106), and Dr. Barbara Singer and Dr. Allan Lieberman (Def.'s MIL, ECF No. 107) are well-taken, and are GRANTED. As a consequence of granting those motions, Defendant's motion for summary judgment (Def. Mot. S.J., ECF No. 117) is also well-taken and is GRANTED, and the remaining motions are DENIED as MOOT.

I. BACKGROUND

This dispute arose out of the road resurfacing "chip and seal" or "chip seal" project on Dutch Creek Road in Athens County, Ohio. (Third Am. Comp. ¶¶ 3, 4, ECF No. 16.) Residents complained that the dust on the road was affecting their health, and as part of his statutory obligation to maintain the roads of Athens County, the Engineer decided to chip seal Dutch Creek Road (Def. Mot. S.J., ECF No. 117, p. 10.)

Plaintiffs allege that the completion of the "chip and seal" project within one mile of their residence could cause Mrs. Madej serious physical harm or even death. (Id. at ¶¶ 6, 7, 8, 11, 15, 23, 33, 39, 41, 42, 48.) Specifically, Plaintiffs allege that "Cindi suffers from chemical sensitivity, also known as environmental illness, which renders many substances used in road paving highly toxic to her, including but not limited to petrochemicals used in 'chip and seal' road surfacing." (Id., at ¶ 4.) In support of their claims, Plaintiffs rely on three medical experts, John Molot, M.D., a Canadian physician whom they engaged as an expert witness, and treating physicians Barbara Singer, M.D. and Allan Lieberman, M.D. Discovery was completed in June, 2018, and the issues were fully joined on September 11, 2018.

A. The State Court Preliminary Injunction

On September 15, 2015, Plaintiffs filed an action in state court against the Athens County Engineer, Jeff Maiden, in the Athens County Court of Common Pleas seeking "a temporary restraining order, preliminary injunction, and permanent injunction" to stop the paving project. (ECF No. 1-1, PgId 10). Judge Patrick Lang granted a temporary restraining order, and then replaced the temporary restraining order with a preliminary injunction on September 23, 2015, following a hearing on the preliminary injunction on September 21, 2015. (Decision, ECF No. 16, PgId 144.) The state court injunction remains in place, and Dutch Creek Road has not been resurfaced. (Def. Mot. S.J., ECF No. 117, p. 2.)

During the hearing on the preliminary injunction, the Court heard testimony from Mr. Madej, and from Ms. Madej, who was permitted to testify via telephone, including testimony that Ms. Madej sleeps "in a small glass-lined room, with an old recliner being the only furniture she feels her health can tolerate. In winter, the only heat source in the room is a string of incandescent light bulbs, augmented on extremely cold nights by the addition of glass bottles filled with hot filtered water." (Decision, ECF No. 16, PgId 145-46.) The Court also heard testimony from Dr. Barbara Singer, who testified that Ms. Madej "is in extremely poor health, and suffers from ailments including anemia, several vitamin deficiencies, protein deficiency, anxiety and depression." (Id., PgId 146.) "Dr. Singer testified that in her professional medical opinion, these symptoms are caused by extreme chemical sensitivity, and that Mrs. Madej would likely suffer severe physical injury or death if the project moved forward at the current time. Finally, Dr. Singer testified that hospitalization is not a viable option, because the plastics and chemicals used at hospitals would exacerbate Mrs. Madej's illness." (Id.) In granting the preliminary injunction, the Court explained:

While there may be some cause to doubt the diagnosis, it is undisputed that Mrs. Madej is a very sick woman. The question of what is causing her symptoms is one for medical science. The Court is limited to deciding this Motion based onlyupon the facts in evidence before it, and the only medical testimony offered at hearing is that Mrs. Madej is likely to suffer serious injury or death if the project moves forward at the present time. In the absence of contrary medical opinion, the Court is not willing to disregard Dr. Singer's testimony outright.

(Id., PgId 149-50.) On June 30, 2016, Plaintiffs filed a second amended complaint adding federal claims, and on July 7, 2016, Defendant removed the case to this court. (ECF No. 1.)

B. Plaintiffs' Third Amended Complaint

Plaintiffs filed a third amended complaint on October 18, 2016 ("complaint") asserting claims arising under the Fair Housing Amendments Act, 42 U.S.C. § 3601 et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., as well as state-law claims. In addition to monetary relief, Plaintiffs seek an order enjoining Defendant Athens County Engineer Jeff Maiden ("Engineer" or "Defendant") from completing the road resurfacing "chip and seal" project, and a declaratory judgment to the effect that "should the defendant proceed with the threatened chip and seal project on the section of Dutch Creek Road extending from S.R. 550 to Stanley Road Mrs. Madej will suffer serious physical harm or death and that the Defendant will be liable for civil assault and battery and/or wrongful death." (Third Am. Comp., ECF No. 16, PgId 138-39.) In support of the injunction, Plaintiffs attached as Exhibit 1 to the complaint an affidavit dated September 15, 2015, from Dr. Barbara Singer, Ms. Madej's treating physician, declaring that Ms. Madej "suffers from chronic chemical sensitivity resulting from toxic exposure." (Singer Aff., ECF No. 16, Ex. 1, PgId 140.) "She also currently suffers from a life-threatening anemic condition as evidenced by very low hemoglobin levels and severe vitamin B12 deficiency, as well as extreme weight loss and cardiometabolic decompensation. She is in a precarious state and even small exposures to chemical stressors create a serious hazard for her." (Id.) Dr. Singer stated that Ms. Madej "requires limited exposure or avoidance of many common materials and chemicals which include but are not limited to: diesel, jet andother fuels, exhaust, tar and asphalt, oil, herbicides and pesticides, smoke." (Id.) She stated that "[r]oadway construction and maintenance activities are of particular concern. Exposures, even in small amounts, to numerous volatile organic compounds found in petrochemical products like tar (e.g. anthracene, benzene, and phenols), many of which outgas for months are dangerous and even life-threatening for [Ms. Madej]. Potential impacts include: difficulty breathing, heart attack, paralysis, migraines, neurologic stress and damage." (Id.) Additionally, "[a]voiding exposure is crucial. [Ms. Madej] is unable to relocate from her home due to the severity and breadth of her sensitivities and the specialized living environment she requires." (Id.) "If [Ms. Madej's] road has a chip and seal or asphalt surface (or other surfacing that contains volatile organic compounds or toxins to which she is sensitive) especially while she is already in a weakened state from her anemia condition, weight loss, and cardiometabolic decompensation it is my opinion to a reasonable degree of medical certainty that she will suffer serious physical harm or possible death." (Id., PgId 141.)

Count I seeks injunctive relief to prevent the paving of Dutch Creek Road with asphalt or chip seal (Third Am. Comp., p. 1); Count II claims civil assault, battery, and/or wrongful death (Id., p. 4); Count III seeks a declaratory judgment that, should Defendant proceed with chip seal Ms. Majed will suffer assault, battery and/or death (Id., p. 5); Count IV claims a violation of the Fair Housing Amendments Act, 42 U.S.C. § 3601, et seq. (Id.); and Count V claims a violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (Id., p. 6.)

II. EVIDENTIARY MOTIONS

Defendant moves to exclude the testimony of the Ms. Madej's treating physicians, Dr. Singer and Dr. Lieberman (Def.'s MIL, ECF No. 107); Plaintiff's medical expert, Dr. Molot (Def.'s MIL, ECF No. 106); and the...