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Abner v. United States Pipe and Foundry Company, LLC

United States District Court, N.D. Alabama, Southern Division

January 23, 2018

WILLIE ABNER, et al. Plaintiffs,



         This memorandum opinion addresses motions for partial summary judgment jointly filed by both Defendants, asserting that Alabama's statute of limitations bars the claims of 601 of the 657 Plaintiffs. (Doc. 104 in 2:15-cv-02040-KOB; Doc. 104 in 2:15-cv-02045-KOB; Doc. 102 in 2:15-cv-02046-KOB; Doc. 102 in 2:15-cv-02047-KOB; Doc. 99 in 2:15-cv-02048-KOB; Doc. 115 in 2:15-cv-02049-KOB; Doc. 103 in 2:15-cv-02050-KOB; Doc. 100 in 2:15-cv-02051-KOB; Doc. 114 in 2:15-cv-02052-KOB; Doc. 104 in 2:15-cv-02054-KOB; Doc. 105 in 2:15-cv-2055-KOB; Doc. 105 in 2:15-cv-02056-KOB; Doc. 101 in 2:15-cv-02057-KOB; Doc. 43 in 2:17-cv-00136-KOB).[1]

         These 14 consolidated cases involve Plaintiffs' allegations that Defendants operated a pipe-making facility in Birmingham, Alabama that released harmful chemical contaminants into areas occupied or frequented by Plaintiffs, causing personal injury and property damage. Defendants are two companies associated with the pipe-making facility: United States Pipe & Foundry Company, LLC, and Mueller Water Products, Inc. All of Plaintiffs' amended complaints assert wantonness, negligence per se, and punitive damages claims. Twelve of the amended complaints also assert negligence claims, and three assert wrongful death claims. Finally, four of the amended complaints assert nuisance and trespass claims. See App'x A (Chart of Claims by Case). The court will refer to the claims of wrongful death, wantonness, negligence, negligence per se, and punitive damages as “the personal injury claims.” Because the court concludes that the “federally required commencement date” provided in the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) may apply in these cases, the court WILL DENY Defendants' motions for partial summary judgment.


         Plaintiffs allege that Defendants (or predecessors of Defendants) operated a ductile iron foundry from early in the 20th century until 2010, when the Plant closed. (Doc. 93 at 1-2, 4; Doc. 107-2 at 6, 9-10).[2] According to Plaintiffs, while the Plant was operating, it emitted, via the air and groundwater, a number of toxic substances into Collegeville, North Birmingham, Fairmont, Harriman Park, “and other surrounding areas” (“the Neighborhoods”). (Doc. 93 at 6- 7). The toxic substances included lead, arsenic, beryllium, benzene, xylenes, and volatile organic compounds, which, Plaintiffs allege, are linked to 67 illness, disorders, and/or conditions (“the Conditions”), and had “an immediate and/or permanent adverse effect upon human health and the natural environment in which the Plaintiffs lived, worked, and/or frequented.” (Id. at 3, 7-13). As a result, they were exposed to the toxic substances, causing them “significant injuries and damages, including but not limited to one or more of the [Conditions] and damage to their real property in the Neighborhoods.” (Id.).

         In an undated informational release from the Environmental Protection Agency, entitled “Cleanup Process in the North Birmingham Environmental Collaboration Project, ” the EPA stated that it had created a “Superfund Site, ” which included an area known as the “35th Avenue Superfund Site, ” composed of Collegeville and parts of Fairmont and Harriman Park. (Doc. 107-1 at 4-5). The EPA collected soil samples in approximately 1, 100 residential properties within the 35th Avenue Superfund Site and, in some unspecified number of the samples, found arsenic, lead, polycyclic aromatic hydrocarbons, and benzoapyrene. (Id. at 5; Doc. 107-4 at 3).

         In December 2012, the EPA issued to U.S. Pipe an “Information Request” about the 35th Avenue Superfund Site. (See Doc. 107-2 at 2). In March 2013, Mueller responded to that request on U.S. Pipe's behalf, and in April 2013, Mueller provided a supplemental response. (Id.; Doc. 107-3). In September 2013, the EPA identified, among other companies, U.S. Pipe as a “potentially responsible part[y]” for the contamination of the Site. (Doc. 107-1 at 5; Doc. 107-4). Specifically, the EPA notified Defendants that it had “determined that U.S. Pipe . . . may be responsible under CERCLA for cleanup of the Site or costs the EPA incurs in cleaning up the Site.” (Doc. 107-4 at 2). The EPA “offer[ed] [U.S. Pipe] the opportunity to perform certain removal activities at the Site.” (Id.). U.S. Pipe declined that offer. (Doc. 107-1 at 5).

         According to the undated informational release, in 2014, the EPA began cleanup to remove contaminated soil found at 52 of the most highly contaminated properties. (Doc. 107-1 at 5). It has removed over 20, 000 tons of contaminated soil so far. (Id.). The EPA has also begun to “address” another 260 properties and has sought access to an additional 900 properties for sampling. (Id.).

         In 14 separate amended complaints, Plaintiffs assert claims of wantonness, negligence per se, and for punitive damages. Twelve of the 14 amended complaints also assert claims of negligence, and three assert claims of wrongful death. Only four of the amended complaints assert property damage claims-specifically, claims of nuisance and past and continuing trespass.

         In an earlier round of motions practice, Defendants moved for summary judgment as to the personal injury claims made by Plaintiff Eugene Maddox relating to his alleged hearing loss. Arnold v. U.S. Pipe & Foundry Co., LLC, __ F.Supp.3d __, 2017 WL 1196883, at *1 (N.D. Ala. Mar. 31, 2017). Mr. Maddox's opposition to the motion contained very little evidence: he submitted the results from a google search for “hearing loss causes, ” (doc. 77-1); and the EPA's offer to negotiate with U.S. Pipe, (docs. 77-2, 77-3).

         This court granted summary judgment in favor of Defendants, holding that Alabama's two-year statute of limitations for toxic substance exposure claims applied. The court considered three potential triggering dates: (1) Alabama's “date-of-last-exposure triggering date, ” applicable to cases in which the injury occurred before January 26, 2006; (2) Alabama's “date-of-diagnosis triggering date, ” applicable in cases in which the injury occurred on or after January 26, 2006; or (3) the CERCLA commencement date, which is applicable in cases in which the plaintiff proves facts that could support a CERCLA claim. Id. at *3-5.

         The court held that under either of Alabama's triggering dates, Mr. Maddox's complaint, filed in September 2015, came too late. Id. at *3. And it held that Mr. Maddox could not use the CERCLA commencement date because he had “offered no evidence that exposure to hazardous substance released by Defendants into the environment caused his hearing loss.” Id. at *4-5. As a result, the court granted summary judgment to Defendants as to Mr. Maddox's hearing-loss-related personal injury claims. Id. at *5.


         Summary judgment allows a trial court to decide cases when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes ...

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