United States District Court, N.D. Alabama, Southern Division
WILLIE ABNER, et al. Plaintiffs,
UNITED STATES PIPE & FOUNDRY, COMPANY, LLC, et al., Defendants.
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE
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).
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
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). 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.”
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).
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
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.
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
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.
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.
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.
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 ...