Wyman v. U.S. Surgical Corp., 1:18-cv-00095-JAW

• Decision Date: 22 April 2020
• Docket Number: 1:18-cv-00095-JAW
• Parties: Kenneth F. WYMAN, Jr. et al., Plaintiffs, v. UNITED STATES SURGICAL CORPORATION, et al., Defendants.
• Court: U.S. District Court — District of Maine

456 F.Supp.3d 224

Kenneth F. WYMAN, Jr. et al., Plaintiffs,

v.UNITED STATES SURGICAL CORPORATION, et al., Defendants.

1:18-cv-00095-JAW

United States District Court, D. Maine.

Signed April 22, 2020

Rufus E. Brown, M. Thomasine Burke, Brown & Burke, Portland, ME, for Plaintiffs.

Jeffrey D. Talbert, Benjamin S. Piper, Sigmund D. Schutz, Preti, Flaherty, Beliveau, & Pachios, LLP, Portland, ME, for Defendants.

ORDER ON DEFENDANTS' CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE

A lobster and crab fisherman brings claims based on harm suffered as a result of the long-ago disposal of tons of mercury into the Penobscot River. The successor to the corporate entity which engaged in this disposal seeks summary judgment on the permanent and continuing nuisance and permanent and continuing strict liability causes of action, arguing that they are barred by the applicable six-year statute of limitations. Because the Court concludes that the permanent nuisance and strict liability claims accrued on the date of the last tortious disposal and these claims are therefore barred by the statute of limitations, the Court grants summary judgment on these claims. Because the Court concludes that the statutory continuing strict liability claim also accrued on the date of the last tortious disposal, the Court grants summary judgment on this claim.

However, because the Court concludes that there is a genuine dispute over whether the alleged nuisance caused by the dumping of mercury is readily abatable, the Court denies summary judgment on the continuing nuisance claim and the common law continuing strict liability claim.

I. PROCEDURAL HISTORY

On March 5, 2018, Kenneth F. Wyman, Jr. and F/V Megan K II LLC (collectively Mr. Wyman) filed a complaint against United States Surgical Corporation and its wholly owned subsidiary Mallinckrodt US LLC (collectively Mallinckrodt). Compl. (ECF No. 1); Mallinckrodt US LLC's Corporate Disclosure Statement (ECF No. 13). On May 14, 2018, Mallinckrodt filed a partial motion to dismiss for failure to state a claim. Defs.' Partial Mot. to Dismiss (ECF No. 9). On May 30, 2018, Mr. Wyman filed a response to Mallinckrodt's motion to dismiss. Pls.' Obj. to Defs.' Partial Mot. to Dismiss (ECF No. 16). On June 13, 2018, Mallinckrodt filed a reply to Mr. Wyman's objection. Defs.' Reply in Supp. of Partial Mot. to Dismiss (ECF No. 22).

On June 15, 2018, Mallinckrodt answered the Complaint, Defs.' Joint Answer and Affirmative Defenses (ECF No. 23), and on June 27, 2018, Mr. Wyman moved to amend the Complaint. Pls.' Mot. to Amend Compl. (Corrected) (ECF No. 25). On July 23, 2018, a Magistrate Judge granted Mr. Wyman's motion to amend without objection, Order Granting Without Obj. Mot. to Amend (ECF No. 30), and Mr. Wyman filed his amended complaint that same day. First Am. Compl. (ECF No. 31). On August 6, 2018, Mallinckrodt answered the First Amended Complaint. Defs.' Joint Answer to First Am. Compl. and Affirmative Defenses (ECF No. 37). On March 6, 2019, the Court denied Mallinckrodt's Partial Motion to Dismiss. Order Denying Defs.' Partial Mot. to Dismiss (ECF No. 50).

On March 7, 2019, Mr. Wyman filed a motion for partial summary judgment, Pls.' Mot. in Supp. of Mot. for Partial Summ. J. on Liability and Causation for Counts I-II and III-IV (ECF No. 52), and a statement of material facts. Pls.' Statement of Material Facts as to Which There Is No Genuine Dispute (ECF No. 54) (PSMF). On April 26, 2019, Mallinckrodt filed a response to Mr. Wyman's motion for partial summary judgment, Defs.' Opp'n to Pls.' Mot. for Partial Summ. J. (ECF No. 66), a response to Mr. Wyman's statement of material facts, and a statement of additional material facts. Defs.' Opposing Statement of Material Facts and Statement of Additional Material Facts (ECF No. 67) (for Mallinckrodt's opposing statement of material facts, DRPSMF; for Mallinckrodt's statement of additional material facts, DSAMF). On June 7, 2019, Mr. Wyman filed a reply to Mallinckrodt's response, Pls.' Reply to Defs.' Opp'n to Pls.' Mot. for Partial Summ. J. (ECF No. 74), and a response to Mallinckrodt's statement of additional material facts. Pls.' Resp. to Defs.' Statement of Additional Material Facts (ECF No. 75). On October 16, 2019, Mr. Wyman filed an amended reply to Mallinckrodt's statement of additional material facts. Pls.' Am. Resps. to Defs.' Statement of Additional Material Facts (ECF No. 89) (PRDSAMF).

Also, on April 26, 2019, Mallinckrodt filed three additional documents: a motion pursuant to Federal Rule of Civil Procedure 56(d) to defer or deny summary judgment, Defs.' Rule 56(d) Mot. to Deny or Defer Pls.' Mot. for Partial Summ. J. (ECF No. 63); a cross-motion for partial summary judgment, Defs.' Cross-Mot. for Partial Summ. J. (ECF No. 64) (Defs.' Mot. ); and a statement of material facts in support of its cross-motion for partial summary judgment. Statement of Material Facts in Supp. of Defs.' Cross-Mot. for Partial Summ. J. (ECF No. 65) (DSMF). On June 7, 2019, Mr. Wyman filed three documents: an opposition to Mallinckrodt's Rule 56(d) motion, Pls.' Opp'n to Defs.' Rule 56(d) Mot. (ECF No. 70); an opposition to Mallinckrodt's cross-motion for partial summary judgment, Pls.' Opp'n to Defs.' Cross-Mot. for Partial Summ. J. (ECF No. 71) (Pls.' Opp'n ); and a response to Mallinckrodts' statement of material facts with additional material facts. Pls.' Opposing Statement of Material Facts and Statement of Additional Material Facts in Opp'n to Defs.' Cross-Mot. for Partial Summ. J. (ECF No. 72) (for Mr. Wyman's opposing statement of material facts, PRDSMF; for Mr. Wyman's statement of additional material facts, PSAMF).

On July 12, 2019, Mallinckrodt filed a reply to Mr. Wyman's response to its Rule 56(d) motion. Reply in Supp. of Defs.' Rule 56(d) Mot. (ECF No. 83). Also, on that date, Mallinckrodt filed a reply to Mr. Wyman's response to its cross-motion for partial summary judgment, Reply in Supp. of Defs.' Cross-Mot. for Partial Summ. J. (ECF No. 81) (Defs.' Reply ), and a reply to Mr. Wyman's statement of additional material facts (DRPSAMF). Defs.' Reply Statement of Material Facts in Supp. of Cross-Mot. for Partial Summ. J. (ECF No. 82) (DRPSAMF).

On July 21, 2019, Mr. Wyman filed an unopposed motion for oral argument on the pending motions, Pls. Mot. for Oral Arg. on Pending Mots. (ECF No. 84); Defs.' Resp. to Pls.' Mot. for Oral Arg. On Pending Mots. (ECF No. 86), which the Court granted on July 24, 2019. Order Granting Mot. for Oral Arg./Hr'g (ECF No. 87). The Court held oral argument on February 19, 2019. Min. Entry for Proceedings Held Before Judge John A. Woodcock, Jr. (ECF No. 94). On April 21, 2020, the Court issued an order denying Mr. Wyman's motion for partial summary judgment and dismissing as moot Mallinckrodt's Rule 56(d) motion. Order on Pls.' Mot. for Partial Summ. J. (ECF No. 96).

II. FACTUAL BACKGROUND¹

A. Kenneth F. Wyman, Jr. and Mercury Discharges into the Penobscot River

Mr. Wyman has held a commercial fishing license since 1987, which has authorized him to harvest lobster and crabs from Lobster Management Zones C and D. DSMF ¶¶ 1-2; PRDSMF ¶¶ 1-2. Although Lobster Management Zones were not established until 1997, Mr. Wyman has always fished for lobster and crabs in what are now Zones C and D. DSMF ¶ 3; PRDSMF ¶ 3. Mr. Wyman alleges that Mallinckrodt is responsible for mercury discharges between December of 1967 and April of 1982 from a chlor-alkali facility in Orrington, Maine (the Orrington Plant). DSMF ¶ 4; PRDSMF ¶ 4. In 1970, the United States Government sued the owners and operators of the Orrington Plant (Mallinckrodt's Predecessors); the case was resolved by a 1972 consent decree between the United States Government and Mallinckrodt's Predecessors authorizing some limited discharge of mercury into the Penobscot River. DSMF ¶¶ 5-6; PRDSMF ¶¶ 5-6. In August of 1973, the United States Environmental Protection Agency issued a discharge permit to Mallinckrodt's Predecessors. DSMF ¶ 7; PRDSMF ¶ 7.

B. The Maine People's Alliance Lawsuit

In 2000, the Natural Resources Defense Council, Inc. and the Maine People's Alliance filed a citizen suit with docket number 1:00-cv-00069-JAW against Mallinckrodt Inc. under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B), in the United States District Court for the District of Maine (Federal RCRA Case). DSMF ¶ 8; PRDSMF ¶ 8. Mallinckrodt Inc. was found liable under the RCRA in 2002 for mercury discharges at the Orrington Plant from December 9, 1967, until April 30, 1982. DSMF ¶ 9; PRDSMF ¶ 9. During the liability phase of the Federal RCRA Case, several individuals testified that "they do not eat fish or shellfish from the Penobscot River or Bay because they are concerned that the fish have dangerous levels of mercury that may harm their health."² DSMF ¶ 10; PRDSMF ¶ 10. In that case, the Court found that individuals who lived on or near the Penobscot River had suffered injuries fairly traceable to the mercury discharged from the Orrington Plant.³ DSMF ¶ 11; PRDSMF ¶ 11. The Court also found that one witness' injury included disruptions of her plans to harvest blue mussels to supplement her income and diet.⁴ DSMF ¶ 12; PRDSMF ¶ 12.

In November of 2003, the Court appointed a study panel (Study Panel) to conduct the Penobscot River Mercury Study (PRMS), a two-phase study of mercury in the Penobscot River. DSMF ¶ 13; PRDSMF ¶ 13; PSAMF ¶ 1; DRPSAMF ¶ 1. The Study Panel's original charge included investigation into whether it was feasible to remediate the harm caused by mercury contamination in the Penobscot River and Bay system south of the Orrington Plant. DSMF ¶ 14; PRDSMF ¶ 14. In January of 2008, the Court ordered the Study Panel to proceed to its second phase (Phase II Study) to address whether it was necessary and feasible to ameliorate mercury and the methylation of mercury in the Penobscot River by means that would likely exceed...