Arnold et al v. United States Pipe and Foundry Company LLC et al
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/31/17. (SAC )
2017 Mar-31 AM 09:04
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DOROTHY ARNOLD, et al.,
UNITED STATES PIPE & FOUNDRY
COMPANY, LLC, et al.,
This case is one of 14 consolidated cases involving 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. This matter is before the court on Defendants United States Pipe and Foundry
Company, LLC (USPF) and Mueller Water Products, Inc.’s (Mueller) “Motion for Summary
Judgment as to Plaintiff Eugene Maddox’s Time-Barred Claims.” (Doc. 9 [redacted]; Doc. 13
[sealed]). Plaintiff filed a response (doc. 77) and Defendants filed a reply. (Doc. 82). Plaintiff
then moved for, and was granted, leave to file a sur-reply. (Docs. 88, 89, 91).
For the reasons stated in this Memorandum Opinion, the court will GRANT Defendants’
Motion for Summary Judgment as to Plaintiff Eugene Maddox’s Time-Barred Claims.
Standard of Review
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. When a district court reviews a motion for summary judgment, it must determine
two things: (1) whether any genuine issues of material fact exist; and if not, (2) whether the
moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56©.
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
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56).
Once the moving party meets its burden of showing the district court that no genuine
issues of material fact exist, the burden shifts to the non-moving party to produce sufficient
favorable evidence “to demonstrate that there is indeed a material issue of fact that precludes
summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “If the
evidence [on which the nonmoving party relies] is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249–50 (1986) (internal citations omitted).
When ruling on a motion for summary judgment, the court should view all evidence and
inferences drawn from the underlying facts in the light most favorable to the non-moving party.
See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). The evidence of
the non-moving party “is to be believed, and all justifiable inferences are to be drawn in [its]
favor.” Anderson, 477 U.S. at 255. “If reasonable minds could differ on the inferences arising
from undisputed facts, then a court should deny summary judgment.” Allen v. Tyson Foods, Inc.,
121 F.3d 642, 646 (11th Cir. 1997) (internal quotation marks and citations omitted). This
standard exists because “the drawing of legitimate inferences from the facts are jury functions,
not those of a judge.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000)
(quoting Anderson, 477 U.S. at 255).
After both parties have addressed the motion for summary judgment, the court must grant
the motion only if no genuine issues of material fact exist and if the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56.
Factual and Procedural Background
Plaintiff Eugene Maddox asserts several state law personal injury and property damage
claims related to Defendants’ release of chemical contaminants from USPF’s Birmingham pipemaking facility, which closed in 2010. Mr. Maddox does not specifically allege the nature of his
injuries or property damage in the Complaint, nor does he provide any information about his
dates of discovery or diagnosis. Rather, he claims to have contracted one or more of the “linked
diseases” identified in the Complaint and to have generally suffered property damage. The
“linked diseases” include hearing loss.
In February 2015, before this lawsuit’s filing and as part of a pre-litigation demand, Mr.
Maddox’s previous attorney submitted a chart with putative plaintiffs’ information to USPF and
Mueller. This chart contained Mr. Maddox’s identifying information and listed his injury as
hearing loss and his date of diagnosis as 2006. Mr. Maddox filed this suit on September 21,
Defendants allege that Mr. Maddox’s personal injury claims predicated on his hearing
loss are time-barred whether Alabama law governs or federal law preempts Alabama law.
Defendants argue that Mr. Maddox cannot invoke preemption because he cannot state a claim
under the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), commonly known as the “Superfund” law. Mr. Maddox submits that CERCLA
preempts the Alabama statute of limitations in this case and that his personal injury claims are
timely; he notes that he asserts personal injury claims other than his hearing loss. Defendants do
not contend that Mr. Maddox’s property damage claims are time-barred.
Alabama Statute of Limitations
Because this court sits in diversity, Alabama substantive law, including the statute of
limitations, presumptively governs these proceedings. See Mississippi Valley Title Ins. Co. v.
Thompson, 802 F.3d 1248, 1251 n.2 (11th Cir. 2015) (internal citations omitted). Alabama law
imposes a two-year statute of limitations for personal injury claims. Ala. Code § 6-2-38(l). The
two-year period begins to run as to toxic substance exposure claims “only when there has
occurred a manifest, present injury.” Griffin v. Unocal Corp., 990 So. 2d 291, 293 (Ala. Jan. 25,
2008) (quoting and adopting as its opinion the reasoning in Justice Harwood’s dissent in Cline v.
Ashland, Inc., 970 So. 2d 755, 773 (Ala. 2007)). An injury is manifest when it “has evidenced
itself sufficiently that its existence is objectively evident and apparent, even if only to the
diagnostic skills of a physician.” Cline, 990 So. 2d at 773 (Harwood, J., dissenting). The
Alabama Supreme Court in Griffin explicitly overruled its “date of last exposure” rule for toxic
substance exposure claims, set forth in Garrett v. Raytheon Co., 368 So. 2d 516 (Ala. 1979).
The Alabama Supreme Court, explaining its statement in Griffin that the decision would
apply prospectively, stated that the new “manifest, present injury” rule applied “only to those
persons whose last exposure to a toxic substance, and first manifest injury resulting from that
exposure, occurred within the two-year period before this Court released its opinion in Griffin.”
Jerkins v. Lincoln Elec. Co., 103 So. 3d 1, 5 (Ala. 2011).
Mr. Maddox has not disputed the evidence, which was originally provided by his own
attorney to Defendants, showing that he was diagnosed with hearing loss in 2006. Thus, his
hearing loss injury manifested, at the latest, in 2006. Without more information, the court cannot
determine whether that diagnosis occurred within two years of the January 25, 2008 Griffin
decision, so that his diagnosis began the running of the statute of limitations. However, it need
not make such a determination, because the USPF pipe-making facility closed in 2010—meaning
Mr. Maddox’s date of last exposure was, at the latest, December 31, 2010. Cf. Evans v. Walter
Indus., Inc., No. 1:05-cv-01017-KOB (N.D. Ala. Sept. 24, 2008), ECF Doc. 186, at 29–30
(holding that where “unremediated emissions from the Defendants’ facilities have, allegedly,
settled and remained on the Plaintiffs’ properties . . . . the continued presence and passive
migration of contaminants” did not constitute a continuing trespass).
If Mr. Maddox was diagnosed within two years of January 25, 2008, then the statute of
limitations began running when he was diagnosed in 2006 and expired in two years. If, however,
his diagnosis occurred prior to January 25, 2006, then his 2010 date of last exposure started the
running of the statute of limitations, which would have expired in 2012. Thus, under either the
Garrett or the Griffin standard, Mr. Maddox’s claims for hearing loss accrued more than two
years prior to the date he filed this lawsuit, September 21, 2015, and so are time-barred.
Federally Required Commencement Date Under CERCLA
Mr. Maddox argues that federal law under CERCLA preempts Alabama law to start the
clock on the statute of limitations at a date later than 2006 or 2010. He does not assert a cause of
action under CERCLA. CERCLA governs personal injury and property damages actions
involving exposure to hazardous substances, pollutants, or contaminants released into the
environment from a facility. It imposes a “federally required commencement date” (FRCD) on
such actions. The FRCD is defined by the law as “the date the plaintiff knew (or reasonably
should have known) that the personal injury or property damages . . . were caused or contributed
to by the hazardous substance or pollutant or contaminant concerned.” 42 U.S.C. §
9658(b)(4)(A). The statute mandates that “if the applicable limitations period for such action
[i.e., the state statute of limitations period] . . . provides a commencement date which is earlier
than the federally required commencement date, such period shall commence at the federally
required commencement date in lieu of the date specified in such State statute.” 42 U.S.C. §
The U.S. Supreme Court has deemed this provision a “discovery rule” and noted that the
rule unquestionably preempts conflicting statute statutes of limitations. CTS Corp. v.
Waldburger, 134 S. Ct. 2175, 2180 (2014).
Section 9659 provides a private right of action under CERCLA to sue any person “alleged
to be in violation of any standard, regulation, condition, requirement, or order which has become
effective pursuant to this chapter[.]” 42 U.S.C. § 9659. Defendants cite several cases holding that
§ 9658 does not broadly preempt state statutes of limitations in all toxic tort cases, but rather only
applies when CERCLA provides a cause of action, whether or not that cause of action is asserted.
See, e.g., Blankenship v. Consolidation Coal Co., --- F. 3d ----, 2017 WL 937467, at *4–5 (4th
Cir. Mar. 9, 2017) (analyzing “whether the facts of the plaintiffs’ complaints give rise to claims
that could be asserted under CERCLA”); Barnes ex rel. Barnes v. Koppers, Inc., 534 F.3d 357,
365 (5th Cir. 2008) (concluding “that § 9658 operates only where the conditions for CERCLA
cleanup are satisfied”); Becton v. Rhone-Poulenc, Inc., 706 So. 2d 1134, 1137 (Ala. 1997)
(holding that § 9658 was inapplicable where plaintiff could not state a claim under CERCLA).
These decisions have hewn closely to the text of the statute, reasoning that traditional
principles of federalism and the presumption against preemption dictate a narrow construction of
the CERCLA discovery rule. See, e.g., First United Methodist Church of Hyattsville v. U.S.
Gypsum Co., 882 F.2d 862, 868–69 (4th Cir. 1989) (quoting Baker, Watts & Co. v. Miles &
Stockbridge, 876 F.2d 1101, 1107 (4th Cir. 1989) (en banc)) (holding that to find that Congress
intended for § 9658 to preempt state law in an area outside of CERCLA’s scope “would be
contrary to the principles of comity which demand that in our federal system, state law not be
preempted unless it is the ‘clear and manifest purpose of Congress’”); see also Irving v. Mazda
Motor Corp., 136 F.3d 764, 767 (11th Cir. 1998) (quoting Taylor v. Gen. Motors Corp., 875 F.2d
816, 823 (11th Cir. 1989) (noting the “strong presumption” against finding express preemption
“when the subject matter, such as the provision of tort remedies to compensate for personal
injuries, is one that has traditionally been regarded as properly within the scope of the states’
As the Fourth Circuit put it,
were we to interpret § 9658 to preempt state law in a case involving
harms for which CERCLA itself provides no remedy, we would not
only be departing from the stated scope of CERCLA, we would be
distorting the traditional relationship between state and federal law,
which limits federal preemption to when Congress has clearly
provided for it.
Blankenship, 2017 WL 937467, at *4.
The Eleventh Circuit has not specifically addressed this issue. But it has held that the
CERCLA discovery rule did not restrict the period for which plaintiffs could recover damages. In
doing so, the court observed that § 9658 established “a federally mandated ‘discovery rule’ for
environmental torts brought under state law, despite the fact that Georgia generally does not
provide such a rule for torts involving only property damage.” Tucker v. Southern Wood
Piedmont Co., 28 F.3d 1089, 1091 (1994). The plaintiffs in Tucker had sued under CERCLA,
alleging damages to natural resources. Tucker v. Southern Wood Piedmont Co., 1993 WL
733015, at *1 (M.D. Ga. Mar. 25, 1993).
Faced with allegations of property damage from contaminants and pollutants released by
USPF and other defendants’ foundries and smelters in Anniston, Alabama, this court previously
determined that CERCLA applied to “engraft upon Alabama’s ‘applicable limitations period’ a
discovery period, such that the limitations period will have a ‘commencement date’ when the
Plaintiffs knew or should have known of the property damage caused by the hazardous
substances alleged in the complaint.” Evans v. Walter Indus., Inc., 579 F. Supp. 2d 1349, 1353,
1357 (N.D. Ala. 2008) (Bowdre, J.). The Evans plaintiffs brought only state law claims. The
court rejected the argument that § 9658 applied solely in cases with CERCLA claims, citing with
approval the Alabama Supreme Court’s statement that § 9658 applies where facts could support a
CERCLA violation. Id. at 1354, 57 (citing Becton, 706 So. 2d at 1137). Importantly, the court
decided Evans on motions to dismiss, where a plaintiff has no burden to produce evidence in
support of its allegations. See id.
The court is persuaded that § 9658’s preemption is limited to those cases where facts
could support a CERCLA claim. The court additionally finds that this conclusion is consistent
both with its ruling in Evans and the Eleventh Circuit’s ruling in Tucker, where the plaintiffs
sued under CERCLA and “no issue was raised . . . as to whether § 9658 would apply in the
absence of underlying CERCLA claims or CERCLA hazardous waste.” Becton, 706 So. 2d at
Mr. Maddox has failed to produce admissible evidence proving facts that would support a
CERCLA claim. Accord Becton, 706 So. 2d at 1141 (affirming the trial court’s grant of summary
judgment in favor of defendants “because [the plaintiff] failed to present substantial evidence
that his injuries were caused by exposure to a hazardous substance released into the
environment”). Once Defendants raised the defense of the statute of limitations, Mr. Maddox was
required to “carry his burden” to prove that his claim “arose from a ‘release’ of ‘hazardous
substances’ into the ‘environment,’ as well as other case-specific preconditions establishing that
the defendant’s ‘facility’ falls within CERCLA.” Barnes, 534 F.3d at 365 (citing O’Connor v.
Boeing North American, Inc., 311 F.3d 1139, 1150 (9th Cir. 2002)).
Allegations in a pleading do not constitute evidence. Mr. Maddox offered no evidence
that exposure to hazardous substances released by Defendants into the environment caused his
hearing loss. Thus, the court does not reach the question of when Mr. Maddox knew or should
have known of his hearing loss claim based on Defendants’ “pollution of certain neighborhoods
with toxic substances” from its pipe-making facility in Birmingham. (Doc. 1-1 at 5, ¶ 9).
Because Mr. Maddox has failed to create a triable issue of fact as to whether CERCLA’s
discovery rule applies to this matter, the court applies the two-year Alabama statute of
limitations. Under either potentially applicable standard applying that statute to toxic substance
exposure claims, Mr. Maddox’s hearing loss claim is time-barred under state law. Without more
information regarding the nature of Mr. Maddox’s other personal injury claims, the court cannot
make a determination as to whether those additional claims are time-barred.
The court GRANTS Defendants’ Motion for Summary Judgment as to Plaintiff Eugene
Maddox’s Time-Barred Claims, specifically as to his claims for hearing loss diagnosed in 2006.
The court will enter a separate order consistent with this opinion.
DONE this 31st day of March, 2017.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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