Rhodes v. E.I. Du Pont De Nemours and Co., Civil Action No. 6:06-cv-00530.

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Citation657 F.Supp.2d 751
Decision Date28 September 2009
Docket NumberCivil Action No. 6:06-cv-00530.
PartiesWilliam R. RHODES, et al., Plaintiffs, v. E.I. DU PONT DE NEMOURS AND COMPANY, Defendant.
657 F.Supp.2d 751
William R. RHODES, et al., Plaintiffs,
Civil Action No. 6:06-cv-00530.
United States District Court, S.D. West Virginia, Parkersburg Division.
September 28, 2009.

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Gerald R. Rapien, Heidi H. Trimarco, Robert A. Bilott, Taft Stettinius & Hollister, Cincinnati, OH, Harry G. Deitzler, R. Edison Hill, Hill Peterson Carper Bee & Deitzler, Larry A. Winter, Winter Johnson & Hill, Charleston, WV, J. Steven Justice, Taft Stettinius & Hollister, Dayton, OH, William C. Wagner, Taft Stettinius & Hollister, Indianapolis, IN, for Plaintiffs.

Anthony F. Cavanaugh, Douglas G. Green, Jennifer Quinn-Barabanov, Laurence F. Janssen, Libretta P. Stennes, Mark P. Fitzsimmons, Steptoe & Johnson, Washington, DC, Clifford F. Kinney, Jr., Niall A. Paul, Spilman Thomas & Battle, Charleston, WV, Nathan B. Atkinson, Spilman Thomas & Battle, Winston-Salem, NC, for Defendant.



Pending before the court are the defendant's Motion for Summary Judgment Based Upon the Statute of Limitations [Docket 279] and its Motion for Summary Judgment on the merits [Docket 335], and the plaintiffs' Motion for Certification of Non-Medical Monitoring Claims [Docket 277]. For the reasons discussed below, the Motion for Summary Judgment Based Upon the Statute of Limitations is DENIED, and the Motion for Summary Judgment on the merits is DENIED in part and GRANTED in part. The plaintiffs' Motion for Certification is DENIED as moot.

Defendant E.I. du Pont de Nemours and Company ("DuPont") has, for an extended period of time, admittedly discharged chemicals into the environment surrounding Wood County, West Virginia. The potential effects of these chemicals on human health are of great public concern. Issues of institutional competence, however, caution against judicial involvement in regulatory affairs. Courts are designed to remediate, not regulate. Because the plaintiffs' claims are not cognizable under traditional tort theories, the majority of these claims cannot withstand DuPont's summary judgment motion. Only the plaintiffs' medical monitoring claim — a recently recognized and much criticized cause of action under West Virginia law — survives.

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I. Background

This case arises from DuPont's release of perfluoroctanoic acid ("PFOA" or "C-8") from its Washington Works plant in Wood County, West Virginia.1 The plaintiffs allege that PFOA released from the plant has contaminated the drinking water in the Parkersburg Water District ("PWD"). (2d Am. Class Action Compl. ¶ 1 [Docket 267].) On May 26, 2006, William R. Rhodes, Russell H. Miller, and Valori A. Mace filed a class action complaint in the Circuit Court of Wood County, West Virginia, seeking relief from the alleged contamination. On June 29, 2006, DuPont removed the action to this court [Docket 1].

On January 31, 2008, after extensive discovery, the plaintiffs moved for this court to certify a class of "all individuals ... who, for a period of at least one year since November 1, 2005, to the date of an Order certifying the class herein, have been residential water customers of the [PWD]." (Pls.' Post-Hr'g Br. 1 [Docket 246].) That motion was denied on September 30, 2008 [Docket 255]. The plaintiffs sought leave to appeal the order denying class certification [Docket 256], and the United States Court of Appeals for the Fourth Circuit denied that request [Docket 261].

The plaintiffs subsequently filed a Motion for Leave to Amend Amended Class Action Complaint [Docket 263] in order to include a class claim for public nuisance. On January 8, 2009, I granted that motion [Docket 266], and the plaintiffs filed their Second Amended Class Action Complaint [Docket 267]. In the Second Amended Class Action Complaint, the plaintiffs assert seven claims based on the alleged PFOA contamination of the PWD drinking water: (1) negligence, (2) gross negligence, reckless, willful, and wanton conduct, (3) private nuisance, (4) past and continuing trespass, (5) past and continuing battery, (6) medical monitoring, and (7) public nuisance. (2d Am. Class Action Compl. ¶ 89-128.) The plaintiffs seek compensatory and punitive damages; costs and fees; as well as medical monitoring, the abatement of PFOA releases from the plant, and the provision of alternative drinking water. (Id. at p. 22-23.)

On March 30, 2009, DuPont filed a Motion for Summary Judgment Based Upon the Statute of Limitations [Docket 279], followed by a general Motion for Summary Judgment on June 12, 2009 [Docket 335]. The resolution of the two summary judgment motions is appropriate at this time despite the pending motion for class certification.2 A district court should certify a class "at an early practicable time." Fed. R.Civ.P. 23(c)(1). This rule affords a district court discretion to rule on a summary judgment motion before ruling on a class certification motion. See Fed.R.Civ.P. 23(c)(1) advisory committee's note (2003) (explaining that a decision to certify a class may be deferred pending the outcome of a motion to dismiss or motion for summary judgment). Since this Order grants the defendant's Motion for Summary Judgment with respect to the plaintiffs' public nuisance claim, the plaintiffs' pending Motion for Certification of Non-Medical Monitoring Claims is DENIED as moot.

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II. Standard of Review for Summary Judgment Motions

To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court will not "weigh the evidence and determine the truth of the matter." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Although the court will view all underlying facts and inferences in the light most favorable to the nonmoving party, the nonmoving party nonetheless must offer some "concrete evidence from which a reasonable juror could return a verdict in his [or her] favor." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this burden of proof by offering more than a mere "scintilla of evidence" in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Likewise, conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of a summary judgment motion. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987); Ross v. Comm'cns Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985), overruled on other grounds, Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).

III. Standing

Under Article III of the Constitution, federal courts only possess jurisdiction to decide "Cases" and "Controversies." U.S. CONST., Art. III, § 2. These two words "limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process." Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). They also "define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government." Id.; see also Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 599, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) ("No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." (internal quotation marks and citations omitted)).

Although neither party in this case has raised the issue of standing, federal courts are obliged to satisfy themselves that they possess subject matter jurisdiction in every case, and may sua sponte raise the issue of standing. Juidice v. Vail, 430 U.S. 327, 331, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). The "irreducible constitutional minimum of standing contains three elements:" injury, causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To satisfy the injury requirement, "[t]he plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged ... conduct and the injury or threat of injury must be both real and immediate, not conjectural

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or hypothetical." City of L.A. v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).

While standing is a constitutional requirement for subject matter jurisdiction, its ease of definition belies its difficulty of application. See Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, 454 U.S. 464, 475, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) ("We need not mince words when we say that the concept of Art. III standing has not been defined with complete consistency in all of the various cases decided by this Court."). Here, the plaintiffs' alleged injuries are their significantly increased risk of disease justifying medical monitoring.3 Although some courts have questioned "whether enhanced risk generally qualifies as sufficient injury to confer...

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