Soutiere v. Betzdearborn, Inc., CIV.A. 299CV299.

• Decision Date: 29 January 2002
• Docket Number: No. CIV.A. 299CV299.,CIV.A. 299CV299.
• Citation: 189 F.Supp.2d 183
• Court: U.S. District Court — District of Vermont
• Parties: Gary SOUTIERE, Janet Soutiere, Wesley Frost and Martha Frost, Plaintiffs, v. BETZDEARBORN, INC. and Ashland Chemical, Inc., Defendants.

189 F.Supp.2d 183

Gary SOUTIERE, Janet Soutiere, Wesley Frost and Martha Frost, Plaintiffs, v. BETZDEARBORN, INC. and Ashland Chemical, Inc., Defendants.

No. CIV.A. 299CV299.

United States District Court, D. Vermont.

January 29, 2002.

Robert B. Hemley, Esq., Gravel and Shea, Burlington, H. Joseph Gamache, Winooski, for Gary Soutiere, Janet Soutiere, Wesley Frost, Martha Frost, plaintiffs.

James W. Spink, Esq., Elizabeth Hawkins Miller, Esq., Spink & Miller, PLC, Burlington, John J. Zawistoski, Esq., Ryan, Smith & Carbine Ltd., Rutland, Donald E. Frechette, Esq., Edwards & Angell, LLP, Hartford, CT, Andrew P. Fishkin, Esq., Edwards & Angell, LLP, New York, NY, Kenneth J. Cesta, Esq., Edwards & Angell, LLP, Short Hills, NJ, W. Kyle Carpenter, Esq., Woolf, McClane, Bright, Allen & Carpenter, PLLC, Knoxville, TN, for Betzdearborn, Inc., Ashland Chemical, Inc., defendants.

OPINION AND ORDER

SESSIONS, District Judge.

Plaintiffs Gary Soutiere and Wesley Frost together with their spouses brought this action in strict liability, breach of warranty and negligence, claiming that they sustained neurological injury from their use of and exposure to polyacrylamide flocculents in the course of their employment at the IBM manufacturing facility in Essex Junction, Vermont. Defendants Betz-Dearborn Inc. ("Betz") and Ashland Inc. ("Ashland"),¹ manufacturers and distributors of the flocculent, have jointly moved for summary judgment on the ground that the applicable statute of limitations bars Plaintiffs' claims. For the reasons that follow, Defendants' motion is denied.

Factual Background

For the purpose of deciding this motion, the following facts are undisputed. Gary Soutiere and Wesley Frost were co-workers at IBM in its industrial wastewater treatment plant. In the course of their employment they handled an acrylamide polymer flocculent, a substance used to remove heavy metals and other contaminants from wastewater. Flocculents made of acrylamide polymer will always contain a small amount of residual acrylamide monomer. Acrylamide monomer is neurotoxic and carcinogenic, and exposure to large amounts can result in severe injury or death.

The flocculent, a powder, was stored in barrels or bags. In the course of their work, Frost and Soutiere would open the bags or barrels, handle the powder, mix it with water, and clean out machinery and pipes that frequently became clogged with a mix of water and flocculent. Introducing the flocculent, or polymer, into the system generated considerable dust, and any contact with moisture produced an oily slime. The floor in the polymer work area usually had a film of water on it because the drains frequently clogged.

Neither Frost nor Soutiere was advised of any potential health hazards associated with exposure to acrylamide monomer, and they took no precautions when handling the flocculent or working around it. As they emptied the bags, mixed the polymer and cleared the pipes, their faces, hands, eyes and lungs were exposed to the substance. As Soutiere put it, they "lived and breathed that stuff for years." Soutiere Dep. v. II at 57 (Doc. 69, Ex. A).

In 1985 Frost began to experience severe pain in his left foot. In 1986 he started feeling the same pain in his right foot. Over the next two years the pain migrated through his arms, hips and legs. His health declined; by 1986 he had difficulty climbing stairs. By 1988 to 1989, Frost was taking morphine for pain and using crutches much of the time. He was found to be totally disabled for purposes of disability insurance benefits as of April 1993.

Soutiere began experiencing severe pain in his feet in the first half of 1990. His symptoms also worsened, and he received a determination of total disability as of July 1996. Both men had been diagnosed with peripheral neuropathy² by 1993.

Based on discussions that he had with Frost when his symptoms began, Soutiere believed that he and Frost were suffering from the same problem, and that it stemmed from something they were exposed to in their workplace. Soutiere decided to investigate, and he shared the information he obtained with Frost as he learned it. Frost is a high school graduate. Soutiere has a GED, the equivalent of a high school education.

Soutiere considered possible causes for their neuropathy, including the heavy metals in the influent coming from manufacturing, the concentrated waste system, and the domestic waste system. He discussed these possibilities with medical professionals and with IBM management. He initially had no suspicion that an ingredient in the polyacrylamide flocculent might be the cause.

Following the onset of his symptoms, Soutiere was seen regularly by IBM doctor Douglas Weir, and in November 1993 he and Frost were interviewed by Dr. Franklin Aldrich from IBM's Center for Process and Product Toxicology. At about the time of the November interviews Dr. Weir mentioned acrylamide to Soutiere and told him that acrylamide could cause neuropathy. Whether Soutiere understood or believed from this conversation that acrylamide had caused his neuropathy is disputed by the parties.³ Soutiere then researched acrylamide in a medical library, and believed that what he read about the effects of exposure paralleled his own symptoms.

Dr. Aldrich evaluated the possibility that Soutiere's and Frost's neuropathies were caused by toxic exposure in their workplace. He noted that the acrylamide monomer in the flocculent was the most probable toxin, but that estimated exposure was infinitesimal, and that a toxic cause for their syndrome was "uncertain." Aldrich letter dated 9 November 1993 (Doc. 69, Ex. C).

In 1994, Soutiere filed a complaint with the state under the Vermont Occupational Safety and Health Act ("VOSHA") in which he stated that he and two colleagues had been exposed to toxic chemicals. A VOSHA investigator told Soutiere in 1995 that acrylamide was a likely cause of their neuropathy, but he could not document their exposure. Soutiere reviewed the VOSHA file in Montpelier, Vermont and read a publication containing a discussion of acrylamide's toxicity. The document stated, in pertinent part, "[a]crylamide may be absorbed through the skin or by inhalation. Workers exposed to the dust for 4 to 12 weeks showed symptoms of muscular weakness particularly in the legs, numbness of the limbs, absence of deep tendon reflex, fatigue, and lethargy." Doc. 69, Ex. H. Soutiere believed that he was experiencing these symptoms.

On August 14, 1995 Soutiere wrote to Dr. Douglas Trout of the National Institute for Occupational Safety and Health ("NIOSH"). He summarized his efforts to identify a chemical responsible for the neuropathy, stating that he was unable to, although he continued to focus on acrylamide monomer. Dr. Trout conducted a health hazard evaluation and reported that Soutiere's and Frost's symptoms were "not typical manifestations of acrylamide or other toxic neuropathies." Trout report dated October 6, 1995 (Doc. 69, Ex. Q).

On December 13, 1995 Soutiere wrote to Dr. Rup Tandan, a neurologist, in connection with his attempt to obtain workers' compensation. He stated: "I believe I can show that acrylamide monomer in our polymer is the very likely cause of my neuropathy." Doc. 87, Ex. GG. In the same letter he characterized his activities as an ongoing quest to identify the neurotoxin that caused his neuropathy. Dr. Tandan noted that he told Soutiere that it would be impossible to prove a cause and effect relationship between any one chemical and his "painful syndrome." Tandan notes dated June 25, 1996 (Doc. 78, Ex. 18).

In January 1996 Soutiere applied to the Commissioner of Vermont's Department of Labor and Industry ("DOL") for a hearing to adjudicate his claim for workers' compensation. At issue, Soutiere stated, was "[e]xposure through the 1980's and early 1990's to acrylamide monomer in our anionic polymer, used as a coagulant in treating industrial waste water. Acrylamide monomer is a cumulative neurotoxin." Notice dated January 27, 1996 (Doc. 69, Ex. J). In February Soutiere wrote a lengthy letter to a Workers' Compensation Specialist at DOL detailing his efforts to uncover the cause of his neuropathy, his discovery that acrylamide monomer was a neurotoxin, and his growing belief that exposure to acrylamide was responsible for his condition.

In a May 1996 letter requesting medical surveillance by the Environmental Protection Agency, Soutiere detailed his concerns about acrylamide, but concluded by stating that he was still trying to identify chemicals that could have caused his neuropathy.

Also in May of 1996 Dr. Weir noted in Soutiere's medical records that Soutiere continued to be concerned about all chemicals, and that he had no identifiable exposure to any known neurotoxic chemicals and minimal exposure to chemicals in general. IBM continued to maintain to Soutiere that acrylamide monomer was not present in the flocculent or was present in only minute amounts.

On August 25, 1996, in an interview form connected with his application for social security disability benefits, Soutiere stated: "[m]y injury is caused from a cumulative exposure to a neurotoxin called acrylamide monomer which causes motor and sensory nerve damage, numbness to lower limbs, inability to write or lift feet when walking or climbing stairs and more." Doc. 69, Ex. N.

On October 26, 1996, Soutiere asked IBM for a chemical list showing the identity and quantity of polymers used at the IBM Waste Treatment Plant. In deposition he testified: "I still had strong—... even though people were saying, "Well, sorry, Gary, we don't think it is it," IBM said, "Boy, we don't think it is it," and doctors said, "Boy, we're not sure," I still had strong suspicions, so, still, my quest was still the polymer." Soutiere Dep. v. IV at 111 (Doc. 69, Ex. K).

The medical notes of neurologist Dr. Leland Scott from April 8, 1997 reflect that he diagnosed Frost with "peripheral neuropathy likely...