Wilcox v. Homestake Mining Co.

• Decision Date: 15 November 2005
• Docket Number: No. CIV-04-534JCWDS.,CIV-04-534JCWDS.
• Citation: 401 F.Supp.2d 1196
• Parties: Claude WILCOX, as personal representative of the Estate of Harriet Wilcox, deceased; Trinity Scott, as personal representative of the Estate of Marcella Marie Hartman, deceased; Kristen Bonham, as personal representative of the Estate of Daisy Randall Crawford, deceased; Betty Cagle; Sherry Cruz; Bryan Cruz, Mary Ann Daniel; Alpha Darby; Debra Quinn Darby, Cathey Darby, as natural parent and next friend of Jandell Darby; Robert Lee Darby; Samantha Ebberts; Robert Foust; Helen Reed Frazier; Wanda Gregory; Rhonda Quinn Hawkins; Shannon Howard; Rhonda Knotts; Eunice Quinn; Lorraine Rowland; Connie Foust Royal; Darlene Cowert Serna; Amanda Wilcox; Dwayne Wilcox; Randall Wilcox and Susie Wilcox, Plaintiffs, v. HOMESTAKE MINING COMPANY, a Delaware corporation; Homestake Mining Company of California, a California corporation; Doe Corporations I-XX and Doe Partnerships I-XX, Defendants.
• Court: U.S. District Court — District of New Mexico

401 F.Supp.2d 1196

Claude WILCOX, as personal representative of the Estate of Harriet Wilcox, deceased; Trinity Scott, as personal representative of the Estate of Marcella Marie Hartman, deceased; Kristen Bonham, as personal representative of the Estate of Daisy Randall Crawford, deceased; Betty Cagle; Sherry Cruz; Bryan Cruz, Mary Ann Daniel; Alpha Darby; Debra Quinn Darby, Cathey Darby, as natural parent and next friend of Jandell Darby; Robert Lee Darby; Samantha Ebberts; Robert Foust; Helen Reed Frazier; Wanda Gregory; Rhonda Quinn Hawkins; Shannon Howard; Rhonda Knotts; Eunice Quinn; Lorraine Rowland; Connie Foust Royal; Darlene Cowert Serna; Amanda Wilcox; Dwayne Wilcox; Randall Wilcox and Susie Wilcox, Plaintiffs, v. HOMESTAKE MINING COMPANY, a Delaware corporation; Homestake Mining Company of California, a California corporation; Doe Corporations I-XX and Doe Partnerships I-XX, Defendants.

No. CIV-04-534JCWDS.

United States District Court, D. New Mexico.

November 15, 2005.

COPYRIGHT MATERIAL OMITTED

Roy A. Jacobson, Jr., The Spence Law Firm, Spence, Shockey, & McCalla, Jackson, Wyoming, Rebecca A. Lorenz, Melat, Pressman & Higbie, LLP, Colorado Springs, Colorado, Michael Alarid, Jr., Jason M. Alarid, The Alarid Law Firm, P.C., Albuquerque, New Mexico, for Plaintiffs.

Daniel J. Dunn, Henry W. Ipsen, Matthew J. Lepore, Geoffrey M. Barry, Holme, Roberts & Owen, LLP, Denver, Colorado, John J. Indall, Comeau, Maldegen, Templeman & Indall, LLP, Santa Fe, New Mexico, for Defendants.

MEMORANDUM OPINION AND ORDER

CONWAY, Senior District Judge.

THIS MATTER comes before the Court upon Defendants' Motion to Dismiss and Strike, filed October 28, 2004 (Doc. 13). This motion is filed pursuant to Fed. R. Civ. P. 12(b)(6) and 9(b). Defendants move to dismiss and/or strike on the following grounds: 1) Plaintiffs' state law causes of action are preempted by the Price-Anderson Act; 2) Plaintiffs' causes of action fail to state a claim for which relief can be granted and 3) Plaintiffs' fraud cause of action is not pleaded with the required particularity. The Court has reviewed the Motion, the memoranda and exhibits submitted by the parties, and the relevant authorities. The Court grants the Motion to dismiss and strike in part and denies it in part.

I. Background

This suit arises from the contamination of groundwater in residential subdivisions located adjacent to a uranium milling facility, operated by Defendants in Cibola County, New Mexico. The subdivisions provided housing for mill workers, their families and other residents. Plaintiffs either currently reside, or formerly resided in, these subdivisions. Both the mill facilities and the subdivisions are located above five separate aquifers. Plaintiffs drilled private wells on their property and used the aquifers as their primary source of water for consumption and use, as there was no municipal water supply available. Plaintiffs claim that both radioactive and non-radioactive hazardous substances leached into the groundwater from two of the mill's tailings, or waste, pipes. Defendants are required under their Nuclear Regulatory Commission operating license to dispose of and contain the tailings within the mill's site. Plaintiffs claim that at all times between the mill's opening in 1958 and the year 1977, Defendants failed to adequately contain the hazardous substances within the mill site, despite warnings from various agencies of the necessity of lining the tailings ponds and despite documentation of actual groundwater contamination. Plaintiffs claim that the water was further contaminated in 1977, when the berms of the Defendants' tailings ponds breached and 20 million gallons of the substances within flooded Plaintiffs' properties.

Plaintiffs claim that Defendants never warned them of the possible contamination, even though they knew or should have known of the significant health risks. Plaintiffs further claim that Defendants failed to comply with state and federal remediation plans between 1978 and 1984, and that Defendants still permit the release of hazardous substances to this day. Plaintiffs also assert that Defendants gave them false information about the actual level of the contamination in flyers and scientific reports. Defendants entered into a Consent Decree with the Environmental Protection Agency in 1983, which was to provide a permanent alternative water supply to the subdivisions and to pay for domestic water for ten years. Plaintiffs claim, though, that no reasonable alternative to the contaminated water was provided, and Defendants continued to expose Plaintiffs to hazardous substances which resulted in death, serious injuries and damages. Plaintiffs brought suit under the public liability provisions of the Price-Anderson Act, 42 U.S.C. § 2210, for actions including wrongful death, personal injury, fraud and intentional infliction of emotional distress.

II. Standard of Review

A complaint may be dismissed pursuant to Rule 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Sutton v. Utah State Sch. for the Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In deciding a motion to dismiss under Rule 12(b)(6), the Court accepts all well-pleaded factual allegations as true (See Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)), and views them in the light most favorable to the nonmoving party. Sutton, 173 F.3d at 1236.

Rule 9(b) requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed. R. Civ. P. 9(b). More specifically, the Court requires a complaint alleging fraud to set forth the time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof. Schwartz v. Celestial Seasonings Inc., 124 F.3d 1246, 1252 (10th Cir.1997). The rule's purpose is to give defendants fair notice of the claims presented and the factual grounds upon which they are based. Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d 982, 987 (10th Cir.1992) (citation omitted).

III. Discussion

A. Preemption under the Price-Anderson Act

The Price-Anderson Act provides federal protection from tort liability for the private nuclear industry. See Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1503 (10th Cir.1997). The Act was amended by the Price-Anderson Amendments Act of 1988(Act). Id. The new Act grants original federal jurisdiction and removal jurisdiction over all public liability actions arising from nuclear incidents. El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 477, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999); 42 U.S.C. §§ 2210(n)(2), 2014(hh). The Supreme Court held that this Act is an example of a "complete preemption doctrine" which would "convert an ordinary state common-law complaint into one stating a federal claim ..." El Paso, 526 U.S. at 484 n. 6, 119 S.Ct. 1430. Although this language appears to clearly support dismissing all of Plaintiffs' state law claims, many courts addressing the issue have agreed with the formation of a single Price-Anderson Act cause of action, but with sub-parts based on state law theories that are not inconsistent with the Act itself.¹

Indeed, the Act explicitly states that the substantive rules of decision for a public liability action "shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of such section." 42 U.S.C. § 2014(hh). Thus, while there is, in appearance, only one recognized federal claim for relief, several state law theories can be used to support this claim, as long as they are not deemed inconsistent with the Act itself. See In re TMI, 67 F.3d 1103, 1106 (3d. Cir.1995); O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1099 (7th Cir.1994).²

As of Plaintiffs' Second Amended Complaint, which the Court, incidentally, grants leave to be filed per Plaintiffs' request, there are currently seven separate state law theories of liability. The Court, then, must evaluate which of these theories are consistent with the Act and should be allowed to proceed as causes of action. Defendants most strongly dispute the consistency of the liability standards presented: namely Plaintiffs' claims of Strict and Absolute Liability. Although these have been presented as separate claims in Plaintiffs' Second Amended Complaint, Plaintiffs have recognized it as proper under New Mexico law to merge these two claims into one theory of liability. Resp. at 6, n. 2.

Defendants do not dispute that Plaintiffs' claims of negligence, fraud, intentional infliction of emotional distress or medical monitoring are inconsistent with the Act. Other courts have held, as well, that the claims of intentional torts, fraud and negligence are not inconsistent with the Act. See Bohrmann v. Me. Yankee Atomic Power Co., 926 F.Supp. 211, 221 (D.Me.1996) (intentional torts are not inconsistent with the Act); Corcoran v. N.Y. Power Auth., 935 F.Supp. 376, 387-389 (S.D.N.Y.1996)(battery and fraud causes of action deemed consistent with the Act); McCafferty v. Centerior Serv. Co., 983 F.Supp. 715, 730 (N.D.Ohio 1997) (intentional infliction of emotional distress cause of action would be consistent with the Act if all its elements had been met). This court agrees that although the federal safety standards may preempt the use of a state liability standard, they have no bearing on Defendants' liability for intentional acts. See Bohrmann, 926 F.Supp. at 221. Therefore, the theories of fraud and intentional infliction of emotional distress will be allowed to remain thus far, as they are not inconsistent with the Act. Claims of medical monitoring and negligence have been allowed to proceed when brought under the Act in the Tenth...