Modern Holdings, LLC et al v. Corning, Inc. et al

Filing 425

MEMORANDUM OPINION & ORDER: 1. Defendant's Motion to Dismiss for Failure to State a Claim [R. 362 , R. 365 ] are DENIED; 2. Defendants' Motion to Dismiss for failure to state a claim [R. 392]] is DENIED; 3. The Clerk of Court is DIRECTED to REMOVED Justin Burgess and Robert Lance form the case caption. Signed by Judge Gregory F. Van Tatenhove on 9/11/2020.(KM)cc: COR Modified text on 9/11/2020 (KM).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
MODERN HOLDINGS, LLC, et al.,

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Plaintiffs,
v.
CORNING, INC., et al.,
Defendants.

Civil No. 5:13-cv-00405-GFVT-EBA

MEMORANDUM OPINION
&
ORDER

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This matter is before the Court upon Defendants Corning Incorporated and Philips
Electronics North America’s Motion to Dismiss and Motions for Judgment on the Pleadings. [R.
363; R. 365; R. 392.] Several new individual Plaintiffs have been added to this case due to the
Fifth Amended Complaint and the Court consolidating two separate cases arising from the same
set of facts. Now, Defendants seek to dismiss personal injury claims brought by the newly added
Plaintiffs that do not fit within the previously denied class description. The main question this
Court faces is whether the newly added Plaintiffs’ personal injury claims that exclude balance
disorder or cognitive loss were tolled during the pendency of class certification that was
ultimately denied. For the reasons that follow, Plaintiffs’ Motion to Dismiss and Motions for
Judgment on the Pleadings are DENIED.
I
Plaintiffs in this case are comprised of two companies and several individuals who all
own property and/or reside near a glass manufacturing facility in Danville, Kentucky. [See R.

308 at ¶¶ 4–99.]1 Defendants include Corning, Inc., which owned and operated the glass
manufacturing facility from 1952 to 1983, and Philips North America, which owned and
operated the site between 1983 and 2013. See id. at ¶¶ 100,101. Plaintiffs claim they have
suffered various health problems and damage to their properties due to the release or dispersion
of hazardous materials from the glass manufacturing facility. See id. at ¶ ¶ 4–99. Accordingly,
Plaintiffs bring numerous tort claims against Defendants including nuisance, trespass,
negligence, battery, fraudulent concealment, and negligent infliction of emotional distress. Id. at
¶ 2.
Defendants seek to dismiss personal injury claims brought by two groups of Plaintiffs:
Plaintiffs added from the Fifth Amended Complaint and Plaintiffs added from the consolidation
of the two federal cases. [R. 363; R. 392.] On March 29, 2018, this Court denied Plaintiffs’
request for class certification. [R. 291.] The class Plaintiffs sought to certify consisted of all
persons who at any time between 1952 to 2013, resided within the affected area and suffered
some type of illness or who owned off-site property within the affected area. [R. 251 at 1.]
The proposed class definition was based on alleged injuries of balance disorder and cognitive
loss which were the only personal injury claims supported through affidavits of a medical doctor.
[R. 363-1 at 2.]
On March 29, 2019, Plaintiffs filed a separate action in Boyle County Circuit Court that
was based on the same facts but added 28 different plaintiffs against the City of Danville,
Phillips, Inc., and Corning, Inc, which was removed to this Court. [R. 391 at 1.] On April 30,

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Plaintiffs initially filed an unredacted Fifth Amended Complaint, which includes names of minors and is
therefore filed under seal. [R. 308.] The Redacted Fifth Amended Complaint is not sealed and contains
the same paragraph numbers as the unredacted Fifth Amended Complaint. [R. 311.] Therefore, the Court
cites to the official Fifth Amended Complaint, but those citations also may be found within the Redacted
Fifth Amended Complaint.

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this Court dismissed the claims of the 79 plaintiffs in the later-filed action who were also a party
to this suit based on the duplicative litigation doctrine. Id. at 2. The Court also dismissed the
claims against the City of Danville and consolidated the remaining plaintiffs’ claims from the
second suit into this case. Id.
The newly added Plaintiffs in the Fifth Amended Complaint and from the consolidated
action assert individual personal injury claims that differ from the motion for class certification.
[R. 396 at 2.] Defendants argue that the newly added Plaintiffs’ personal injury claims are timebarred to the extent they seek to recover damages for conditions other than balance disorder and
cognitive loss. [R. 392-1 at 5.] In opposition, Plaintiffs contend that each individual Plaintiff’s
claims are timely and thus, should not be dismissed. [R. 396 at 2.] In support of their argument,
they state that personal injury claims arising from the same exposure of hazardous substances
were tolled during the pendency of class certification because different ailments such as cancer,
hypertension, and asthma were referenced in the Original Complaint. Id.
II
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the plaintiffs’
complaint. In reviewing a Rule 12(b)(6) motion, the court must “construe the complaint in the
light most favorable to the plaintiff, accept its allegations as true, and draw all inferences in favor
of the plaintiff.” DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The court,
however, “need not accept as true legal conclusions or unwarranted factual inferences.” Id.
(quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). The Supreme Court
explained that in order “[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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570 (2007)); see also Courier v. Alcoa Wheel & Forged Products, 577 F.3d 625, 629 (6th Cir.
2009).
Defendants also seek a judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c), which provides that “[a]fter the pleadings are closed – but early enough not to
delay trial – a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “The
standard of review for a Rule 12(c) motion is the same as for a motion under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted.” Fritz v. Charter Tp. of Comstock, 592
F. 3d 718, 722 (6th Cir. 2010) (citing Zeigler v. IBP Hog Market, Inc., 249 F.3d 509, 511–12
(6th Cir. 2001)). “For purposes of a motion for judgment on the pleadings, all well-pleaded
material allegations of the pleadings of the opposing party must be taken as true, and the motion
may be granted only if the moving party is nevertheless clearly entitled to judgment.” JP
Morgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citations
omitted).
A
Overall, Defendants’ argue that the newly added Plaintiffs’ personal injury claims that
are not based on balance disorder or cognitive loss should be dismissed because they are timebarred by Kentucky’s statute of limitations. [R. 392-1 at 5; R. 363-1 at 2.] Defendants state that
any personal injuries aside from cognitive loss or balance disorder are peripheral claims that
were not tolled. [R. 363-1 at 3.] The newly added Plaintiffs are making a claim for damages
related to alleged personal injuries other than those for which class certification was sought. [R.
392-1 at 5.] Therefore, each of those Plaintiffs would not have been a member of the class had it
been certified. Id. However, Plaintiffs contend that their personal injury claims are timely
because the statute of limitations was tolled as a matter of law until the date the Court denied

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Plaintiffs’ motion seeking class certification. [R. 396 at 3.] They argue that the claims of the
newly added Plaintiffs are the same as those referenced in the Original Complaint and they were
also members of the proposed class. Id. at 4, 6.
In furtherance, Plaintiffs contend that under American Pipe & Construction Co. v. Utah,
personal injury claims based on exposure to the same cause of action as those in the Original
Complaint were tolled through March 29, 2018, the date class certification was denied. 414 U.S.
538, 554 (1974); [R. 396 at 4.; R. 392 at 1.] In Kentucky, personal injury actions must be
commenced within one year after the cause of action accrues. KRS § 413.140(1)(a). An action
accrues when a plaintiff “has knowledge of sufficient facts to state a cause of action.” Hazel v.
General Motors Corp., 863 F. Supp. 435, 438 (W.D. Ky. 1994). “Generally, this means that the
plaintiff must file suit within one year of the alleged injury.” Michals v. Baxter Healthcare
Corp., 289 F.3d 402, 406 (6th Cir. 2002) (citing Caudill v. Arnett, 481 S.W.2d 668, 669 (Ky.
1972)). In certain circumstances, class actions may toll the statute of limitations.
American Pipe & Construction Co. v. Utah held that “the commencement of a class
action suspends the applicable statute of limitations as to all asserted members of the class who
would have been parties had the suit been permitted to continue as a class action.” 414 U.S. at
554. In other words, when a named plaintiff files a class action, the statute of limitations period
is tolled for the individual claims of each of the other class members. That tolling extends until
“class action status is denied.” Id. Upon denial of class status, individual class members are
required to take action to preserve their rights—for example, by filing an individual lawsuit—or
“face the possibility that their action could become time barred,” because the statute of
limitations clock starts to run again. Id.

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Furthermore, tolling applies when the plaintiff asserts a claim that was contained in the
original class action. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 468 (1975).
However, the subsequent suit does not have to be identical in every aspect to an earlier class
action. Id. The claims should share a common factual basis or legal nexus. See Currithers v.
FedEx Ground Package Sys., Inc., No. 04-10055, 2012 WL 458466, at *7 (E.D. Mich. Feb. 13,
2012). The plaintiff has to provide fair notice so that the defendant is not prejudiced by a lack of
ample notice. Crown, Cork, & Seal Co., 462 U.S. at 353. In order to prevent prejudice, the
factual and legal nexus between the proposed claims for which tolling is asserted and the
putative class claims in the prior litigation should be analyzed. See also, e.g., In re Copper
Antitrust Litigation, 436 F.3d 782, 793–97 (7th Cir. 2006).
A district court’s decision that class status should be denied places all class members on
notice that they are not members of any putative or actual class. At that point “the class is no
longer putative; having been subjected to a legal decision, the class is either extant or not.”
Collins v. Vill. Of Palatine., 875 F.3d 839, 845 (7th Cir. 2017) (“An uncertified class-action suit
is decidedly not a class action once all class claims have been dismissed. The statute of
limitations immediately resumes.”). Thus, courts must look to the class action complaint to
determine if a defendant had sufficient notice of the claims. Rochford v. Joyce, 755 F. Supp.
1423, 1428–29 (N.D. Ill. 1990). In Crown, the Supreme Court concluded that because
defendants were put on notice of the factual basis for potential antitrust claims of class members,
there was no “potential for [an] unfair surprise” by tolling plaintiffs’ claims during the class
certification. Crown, Cork, & Seal Co., 462 U.S. at 353. Once a class action is filed, the
defendant is put on notice to preserve evidence and witnesses in relations to all of the claims of
the class action members. See Currithers, 2012 WL 458466, at *1.

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1
Here, the Original Complaint contains allegations of other personal injuries that were not
limited to cognitive loss or balance disorder such as lung cancer, hypertension, and bone
disorders. [See R. 1 at ¶34.] In fact, the Complaint lists several established human toxicological
effects associated with the hazardous substances and states that the list is not exhaustive. Id.
Therefore, it is evident that Defendants were put on notice in regard to the variety of personal
claims that were possible. “There has to be complete identity of the causes of action for the
protections [against the running of the limitations period] to necessarily exist.” See Johnson, 421
U.S. at 468 n. 14. However, subsequent individual suits do not necessarily have to be identical
in every respect to an earlier class action for the limitations period to be tolled. See Tosti v. City
of Los Angeles, 754 F.2d 1485, 1489 (9th Cir. 1985). Ample notice of plaintiffs’ individual
claim is given when the individual claim involves the same allegations that were made in the
class suit. Id.
The alleged cause of Plaintiffs’ personal injuries is the pollution from Defendants’ glass
manufacturing facility. [R. 308 at ¶¶ 1, 3.] This remains constant throughout the entirety of the
case, including the Amended Complaints and motion seeking class certification. The
distinguishing characteristics between the Amended Complaints consist of the newly added
Plaintiffs and their personal injuries they individually claim to suffer. However, these additional
ailments are generally listed in the Original Complaint. [See R. 1 at ¶ 34.] Defendants are
correct in that these other ailments listed in the Fifth Amended Complaint were not included in
the definition of the proposed class. [See R. 251-1 at 15.] In fact, Plaintiffs specifically included
that the expert report by Dr. Changaris concluded that “each Plaintiff he examined has suffered
‘[b]alance disorder with central processing disorder caused by lead exposure,’ and ‘[c]ognitive

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loss with processing caused by lead exposure or other neurotoxins.’” Id. (citing [R. 177-2; R.
178-2; R. 179-1; R. 180-2; R. 181-2]). But this fact alone does not determine the outcome of the
issue presented.
In addition, the Supreme Court has found that multiple remedies based on the same
operative facts comprise a single cause of action. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S.
737, 743 (1976). In Car Carriers, Inc. v. Ford Motor Co., the Court emphasized that “a
complaint asserting only one legal right, even if seeking multiple remedies for the alleged
violation of that right, states a single claim for relief.” 789 F.2d 589, 593 (7th Cir.1986) (A . . .
claim is part of the same cause of action as a prior claim if it arises from the same operative
nucleus of fact.); Fed. R. Civ. P. 8(a)(3). As previously stated, in the Fifth Amended Complaint,
Plaintiffs argue for additional remedies based on the same operative facts as the Original
Complaint. [R. 396 at 7.] They allege that negligent dispersals of hazardous pollutants formed
by Defendants caused their asserted personal injuries. Id. at 6. Though, injuries listed in the
Fifth Amended Complaint vary from injuries in the proposed class definition, they are still based
on the same alleged tortious action. [R. 397 at 2.] Therefore, the Court concludes Defendants
were put on notice of the various personal injury claims of the newly added Plaintiffs since they
were included in the Original Complaint and arise from the same cause of action.
This case is distinguishable from cases where courts held that a sufficient nexus did not
exist between the amended complaint and claims asserted in the original class action complaint.
See Williams v. Boeing Co., 517 F.3d 1120, 1136 (9th Cir. 2008) (declining to extend tolling to
putative class members’ claims for discrimination in salary when the prior purported class action
complaints alleged that defendants discriminated against plaintiffs with regard to “terms of
employment” but did not provide notice of a compensation discrimination claim). Defendants

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argue that other ailments included in the Original Complaint such as asthma and hypertension
were not part of the class certification which Plaintiffs sought. [R. 363 at 2.] However, the
factual and legal nexus is determined by the claims in the Original Complaint, not just the class
which Plaintiffs sought to certify. See In re Copper Antitrust Litigation, 436 F.3d at 793–97
(refusing to apply the tolling rule to putative class members’ federal antitrust claims when the
prior purported class actions asserted state antitrust claims). Thus, the Court finds at this stage
that there is a sufficient legal and factual nexus between Defendants’ conduct and the various
personal injuries the newly added Plaintiffs’ claim to suffer. Ultimately, the subsequent
individual suits are not identical in every respect, but the legal claims are substantially similar
and arise from the same cause of action. Thus, the Court will deny Defendants’ motions.
III
The limitations clock on the individual Plaintiffs’ claims resumed when their class action
ceased to exist after their proposed class certification was denied. Newly added Plaintiffs filed
their personal injury claims arising from the same cause of action within a year of that date.
Therefore, their personal injury claims are timely. Accordingly, and the Court being otherwise
sufficiently advised, it is hereby ORDERED:
1.

Defendants’ Motions for Judgment on the Pleadings [R. 363; R. 365] are

DENIED;
2.

Defendants’ Motion to Dismiss for failure to state a claim [R. 392] is DENIED;

3.

The Clerk of the Court is DIRECTED to REMOVE Justin Burgess and Robert

and

Lance from the case caption.2

2

Defendants point out that purported Plaintiffs Justin Burgess and Robert Lance are listed in the caption
of the instant case but are not discussed in the Complaint. [R. 392-1 at 4.] Plaintiffs acknowledge that

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This the 11th day of September, 2020.

the names Justin Burgess and Robert Leon Vance are listed in the case caption of the consolidated case,
but states that “undersigned counsel does not represent these individuals or assert claims on their behalf in
this proceeding, and these names would be properly stricken from the case caption.” [R. 396 at 2 n.1.]

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