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

Filing 431

MEMORANDUM OPINION & ORDER: (1) GRANTED IN PART & DENIED IN PART dfts' 364 MOTION to Dismiss; (2) following plas personal injury claims are DISMISSED WITH PREJUDICE in their entirety: Latrese Barbour, Margo Caldwell, Deon Duncan, Kelvi n Galbreath, Darren Hays, Gloria Lewis, Michelle Coffman Morton, Chantee (Trumbo) Nolan, John Raines, Jr, Brihana Trumbo, Demaya Trumbo, Demmontrell Trumbo, Demonte Trumbo, Dewayne Trumbo, & Dnia Trumbo; (3) as identified in this order, plas' personal injury claims are not dismissed in their entirety but are LIMITED to the listed medical conditions/illnesses.. Signed by Judge Gregory F. VanTatenhove on 10/9/20.(KJR)cc: COR

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

*** *** *** ***
This matter is before the Court upon Defendants’ Motion to Dismiss. [R. 364.] The
Plaintiffs recently filed a Fifth Amended Complaint, adding numerous new Plaintiffs alleging
various personal injuries. [R. 308; R. 311.] 1 Now, Defendants seek dismissal of the newly
added Plaintiffs’ personal injury claims on the basis that they failed to properly comply with
Magistrate Judge Edward B. Atkins’s Lone Pine case management order. The pre-discovery
order, imposed to facilitate the parties’ complex tort litigation, requires Plaintiffs to submit
affidavits detailing certain information about their personal injury and property damage claims.
After carefully considering the newly added Plaintiffs’ Lone Pine submissions, the requirements
of Judge Atkins’s order, and relevant case law, the Court GRANTS IN PART and DENIES IN
PART Defendants’ motion to dismiss.

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.

1

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.] 2 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.
Magistrate Judge Atkins, tasked with facilitating discovery in this action, imposed a
Lone Pine case management order on September 28, 2015. 3 [R. 147.] This Court upheld the
imposition of the Lone Pine order over Plaintiffs’ objections [R. 160], and since that time,
Plaintiffs have been compiling the information needed to comply with the order’s directives.
The order required Plaintiffs to submit affidavits detailing the following information by a certain
date, or risk dismissal of the case:
(1) With respect to the personal injury claims being asserted by the plaintiffs, each
plaintiff shall provide, within 60 days from the date this Order is signed, an affidavit from
a qualified expert or experts which sets forth, to a reasonable degree of scientific
certainty, the following:
(a) For each plaintiff, the specific illness allegedly sustained. (A general, vague
description such as “cancer” will not suffice. The exact type of illness must be

Lone Pine orders, so called for the 1986 Lore v. Lone Pine case, 1986 WL 637507 (N.J. Super. Ct.
1986), are pre-discovery orders designed to ease the complex issues and burdens on defendants and the
court in mass tort lawsuits. In the federal system, these orders are issued “under the wide discretion
afforded district judges over the management of discovery under Fed. R. Civ. Pro. 16.” See Acuna v.
Brown & Root Inc., 200 F.3d 335, 340 (5th Cir. 2000).

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identified.)
(b) For each plaintiff, the date the identified illness was diagnosed, including the
name and address of the medical care provider who made the diagnosis;
(c) For each plaintiff, the toxic chemical which allegedly caused the identified
illness, supported by an explanation of the manner of exposure, the exposure
pathway, the date(s) of exposure, the duration of exposure, and the dose of
exposure; and
(d) Citation to the scientific literature supporting any claim that any plaintiff’s
illness was caused by the described exposure to the identified toxic chemical.
(2) With respect to the property damage claims asserted, each plaintiff shall provide,
within 60 days from the date this Order is signed, an affidavit from a qualified expert or
experts which sets forth, to a reasonable degree of professional certainty, the following:
(a) For each plaintiff, the property address, including tax block and lot number,
for the property alleged to have declined in value;
(b) For each plaintiff, the property address, including tax block and lot number,
for the property alleged to have been contaminated, including a description of any
alleged contaminant, the location on the property on which it was found, and the
date on which any such contaminant was found on the property at issue; and
(c) For each plaintiff, the degree of diminution in value for the property alleged to
have so declined, including the time-frame in which such diminution allegedly
occurred.
[R. 147 at 1–2.]
On March 29, 2018, the Court denied Plaintiffs’ request for class certification. [R. 291.]
Following the denial of class certification, Plaintiffs filed a Fifth Amended Complaint on January
15, 2019 which added nearly ninety additional Plaintiffs with differing personal injury claims.
[R. 308.] On March 8, this Court held that the prior Lone Pine Order was a standing order of the
Court, which required compliance by the newly added Plaintiffs. [R. 323.] Thus, the Court
ordered the newly added Plaintiffs to comply by April 15, 2019. Id. The new Plaintiffs who
claim to have suffered a personal injury due to Defendants’ actions submitted an affidavit from a
doctor named John Gilbert, which Plaintiffs claim provides sufficient information to abide by the
Lone Pine Order. [R. 358.]
On September 27, 2019, Defendants filed a motion to dismiss the personal injury claims
of the newly added Plaintiffs, contending the affidavit produced by Dr. Gilbert fails to comply

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with the Lone Pine order’s requirements. [R. 364.] For purposes of this opinion, the Court
focuses on the case management order entered by Magistrate Judge Atkins, as well as the newly
added Plaintiffs’ purported compliance with that order. [See R. 147.] A careful review of
Plaintiffs’ affidavit demonstrates that some Plaintiffs comply with the requirements of the order
and some do not.
II
At the outset, it is important to note that the Court is not concerned with any of the
parties’ arguments about the overall merits of the case. Both parties wade into substantive
discourse, but the matter at hand is primarily procedural. Lone Pine orders “should not be used
as (or become) the platforms for pseudo-summary judgment motions at a time when the case is
not at issue and the parties have not engaged in reciprocal discovery.” Adinolfe v. United Tech.
Corp., 768 F.3d 1161, 1168 (11th Cir. 2014). Throughout this opinion, then, the Court considers
one simple question: do the affidavits submitted by the newly added Plaintiffs at Docket Entry
358 comply with the requirements of the case management order issued by Judge Atkins on
September 28, 2015?
As set forth above, the Lone Pine order requires Plaintiffs to provide certain information
about their personal injury and property damage claims. [See R. 147.] “The basic purpose of a
Lone Pine order is to identify and cull potentially meritless claims and streamline litigation in
complex cases. In re: Vioxx Prods. Liab. Litig., 557 F. Supp. 2d 741, 743 (E.D. La. 2008). Lone
Pine orders typically require claimants to submit expert affidavits specifying the injury or illness
suffered, the cause of such injury, and the scientific and/or medical basis for the expert's
opinion. See Steering Comm., 461 F.3d at 604 n.2; Acuna, 200 F.3d at 338; McManaway v. KBR,
Inc., 265 F.R.D. 384, 385 (S.D. Ind. 2009); In re Vioxx Prods. Liab. Litig., 557 F. Supp. 2d at

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743. Plaintiffs are only required to provide “some evidence to support a credible claim.”
Kamuck v. Shell Energy Holdings GP, LLC, 2012 U.S. Dist. LEXIS 125566, at *2–3 n.1 (M.D.
Pa. Sept. 5, 2012).
A
First, Defendants argue that ten Plaintiffs fail to provide any Lone Pine disclosures since
the Gilbert affidavit fails to contain any information regarding these specific Plaintiffs’ personal
injury claims. [R. 364 at 5.] Plaintiffs essentially admit “that eight (8) Plaintiffs failed to
comply regarding their personal injury claims.” 4 [R. 371 at 25.] Plaintiffs explain that
undersigned counsel was not able to communicate with these specific Plaintiffs to obtain the
necessary information for Dr. Gilbert. Id. Thus, “Plaintiffs do not take a position with regard to
Corning’s Motion as to these eight Plaintiffs.” Id.
Plaintiffs also admit that they did not provide information with regard to Plaintiffs
Connie Mullins and Joseph Johnson before the April 15, 2019 deadlines. Id. Instead, Plaintiffs
filed a separate affidavit of Dr. Gilbert on October 9, 2019 that discusses these two Plaintiffs. Id.
Thus, Plaintiffs request the Court to accept the late filed affidavit of Dr. Gilbert that pertains to
Connie Mullins and Joseph Johnson. Id. In support of their request, Plaintiffs attached an
affidavit of attorney Evan Rice, which details the reasons for the late submission. [R. 371-1.] In
sum, counsel for Plaintiffs explains that they did not have the correct contact information for
these Plaintiffs, which caused the delay in responding to Defendants’ discovery. Id.
The Court concludes that the eight Plaintiffs who have not provided any of the required

Plaintiffs’ response only list seven Plaintiffs who failed to submit any Lone Pine affidavit: Latrese
Barbour; Deon Duncan; Kelvin Galbreath; Brihana Trumbo; Demaya Trumbo; Demonte Trumbo; and
Dewayne Trumbo. [R. 371 at 25.] However, Plaintiffs inadvertently did not include Demmontrell
Trumbo, who is identified in Defendants’ Motion and is part of the eight Plaintiffs who failed to provide
any Lone Pine disclosures in regard to their personal injury claims. [R. 372 at 3.]

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information of the Lone Pine Order should be dismissed for failure to comply. The Court
previously required that all Plaintiffs submit Lone Pine affidavits to illustrate their prima facie
claims, and where these eight Plaintiffs have not, they will be dismissed from the suit.
Generally, courts will not hold clients responsible for errors committed by counsel as a
sanction. Harmon v. CSX Transp., 110 F.3d 364, 367 (6th Cir. 1997) (“[T]his court, like many
others, has been extremely reluctant to uphold the dismissal of a case merely to discipline an
errant attorney because such a sanction deprives the client of his day in court and it has stated
that dismissal is usually inappropriate where the neglect is solely the fault of the attorney[.]”)
(internal citations, quotation marks, and ellipses omitted). Here, Plaintiffs’ counsel represents
that these particular individuals are not at fault for the untimely filing of the required
information. The Court accepts that representation. Accordingly, the Court will not dismiss the
claims of Connie Mullins and Joseph Johnson for filing their Lone Pine disclosures past the
deadline. In fact, the Court will accept the late filing in regard to these two Plaintiffs and will
consider their affidavit as it pertains to Defendants’ further arguments concerning Plaintiffs’
noncompliance with the Lone Pine Order.
B
Next, Defendants argue that the Court should dismiss all of the newly added Plaintiffs’
personal injury claims because they do not provide a sworn diagnosis of a specific illness
allegedly sustained as a result of Defendants’ conduct. [R. 364 at 5.] First, Defendants
disparage the fact that Dr. Gilbert did not diagnose each Plaintiff himself but instead attributed
historical third-party diagnoses that are unsworn and unreliable to Plaintiffs’ exposure to the
hazardous waste he attributes to Defendants. Id. at 7. It is understood that Defendants would
have rather each Plaintiff submit to an examination of a qualified physician so that the physician

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can then offer their opinion as to their specific illness allegedly sustained as a result of
Defendants’ conduct. Id. However, Plaintiffs argue that the Lone Pine order does not require
Plaintiffs to submit sworn statements from the doctors who diagnosed their medical conditions.
[R. 371 at 22.] Therefore, Plaintiffs provided Dr. Gilbert the information they acquired
regarding their specific diagnoses, which Dr. Gilbert was able to review through each Plaintiff’s
medical records in order to draft his affidavit. Id.
In regard to this argument, the Lone Pine order requires each Plaintiff to submit an
affidavit from a qualified expert which sets forth, to a reasonable degree of scientific certainty,
the “specific illness allegedly sustained,” and the “date the identified illness was diagnosed,
including the name and address of the medical care provider who made the diagnosis.” [R. 147
at 1.] Based upon the Lone Pine Order’s language and basic meaning, there is no requirement
that the expert who submits each Plaintiff’s affidavit, must himself diagnose each specific
illness. In fact, the Lone Pine Order does not require Plaintiffs to submit a sworn statement from
the doctor who diagnosed their medical condition, but only the name and address of the doctor
and the date of the diagnosis. Id.
In the affidavit, Dr. Gilbert states that he reviewed the pleadings and briefs filed in this
action, the verified discovery responses provided by each Plaintiff, and the expert reports by
Plaintiffs’ environmental, medical, and toxicological experts. [R. 358-1 at 2.] He specifically
states, “I discuss each Plaintiff’s history, pathways of exposure, and diagnoses. For each
Plaintiff I also provide an opinion, with a reasonable degree of scientific certainty, regarding
whether the specific ailment suffered by each Plaintiff is causally connected to that Plaintiff’s
exposure to lead, arsenic, and/or TCE.” Id. Each Plaintiff alleges to suffer or suffered with
varying medical conditions which have been diagnosed over the course of their medical histories

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by different doctors. In light of Plaintiffs’ submissions, Defendants are properly on notice of the
claims, and the parties may obtain more specific evidence as to each aspect of the claims going
forward throughout discovery.
As part of their argument, Defendants also indicate that since Dr. Gilbert did not diagnose
any specific illness for any individual Plaintiff himself, he failed to opine to a reasonable degree
of scientific certainty that their alleged illnesses were caused by Defendants. [R. 364 at 6.]
Despite Defendants’ assertion that they are not disputing the reliability of Dr. Gilbert’s process
and his conclusions, the Court construes this argument as exactly that type of challenge. Id. at
n.1. Since the Lone Pine Order does not require Dr. Gilbert to diagnose Plaintiffs’ alleged
illnesses himself, Defendants are ultimately criticizing his credibility and value of his methods
and in due course, the output of his conclusions. Instead of diagnosing each Plaintiff himself,
Dr. Gilbert reviewed each Plaintiffs’ medical records and provided his opinion as it relates to
causation, which he is entitled to do. [R. 371 at 22.]
Once again, the Court finds Defendants’ argument to focus on the reliability and
credibility of the expert which seeks to transform the pre-discovery issue into a dispositive one.
Such evidentiary arguments are improper at this phase of the litigation since the Court is not in a
position to weigh the evidence and credibility of an expert at this stage of the litigation.
Therefore, the Court finds that the Lone Pine order does not require each Plaintiff to submit a
sworn statement from their diagnosing physician and Plaintiffs’ claims will not be dismissed at
this juncture for this sole reason.
C
In the alternative, Defendants request the Court to dismiss several Plaintiffs that rely on
alleged diagnoses by unidentified health care providers and/or of unspecified dates. [R. 364 at

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8.] Specifically, they state that fourteen Plaintiffs should be dismissed because their third-party
diagnoses identified in the Gilbert affidavit fail to identify basic information like the doctor who
made the diagnosis and the timing of the diagnosis. Id. It is true that the Lone Pine order
requires each Plaintiff to include in their affidavit, “the date the identified illness was diagnosed,
including the name and address of the medical care provider who made the diagnoses.” [R. 147
at 1.]
In regard to their noncompliance, Plaintiffs admit that some of them are unable to
identify the names of all diagnosing physicians and/or specific dates of their diagnosis. [R. 371
at 24.] However, in offering a sufficient justification and good cause, Plaintiffs explain that
many of them are elderly, and were diagnosed with medical conditions decades ago. Id. As
such, gathering details regarding every single diagnosing physician and date is impossible, which
is why Plaintiffs “request that literal compliance with this directive not be required in every
case.” Id. In support of their injuries, these Plaintiffs have at least provided the fact of their
diagnosis, and their subsequent medical treatment in the form of past medical records. Id.
The Court finds Plaintiffs’ defense as to why they are not able to ascertain every single
detail pertaining to each diagnosing physician and date, to be reasonable. As long as each
Plaintiff meets the requirements of the Lone Pine order in substance, even though they cannot
satisfy it literally, they are in compliance and Defendants are not prejudiced. Where Plaintiffs’
affidavits adequately set forth their prima facie claims, some gaps may be reasonable for good
cause. Since the Lone Pine order’s purpose is to manage complex issues and lessen the burdens
of complex litigation, the Court will not weigh the available evidence when this purpose is
accomplished. Plaintiffs are only required to provide “some evidence to support a credible
claim,” Kamuck, 2012 U.S. Dist. LEXIS 125566, at *2–3, which they have done.

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Due to the harsh reality of impossibility to obtain all of the names of diagnosing
physicians and dates, the Court believes that dismissal would be inappropriate at this stage, as
long as those Plaintiffs have met all of the other requirements and provided their subsequent
medical documentation evidencing their alleged illness. Therefore, the interest of justice requires
the Court to excuse these fourteen Plaintiffs’ noncompliance. While it is true the affidavit could
be more specific as to facts regarding the history of diagnoses, the Court finds the affidavit as it
pertains to these fourteen Plaintiffs is sufficient to overcome Defendants’ argument for dismissal.
D
Furthermore, Defendants argue that seven Plaintiffs should be dismissed because the
Gilbert affidavit refers to alleged medical conditions that are not referenced in a past medical
record. [R. 364 at 9.] 5 For example, when discussing Plaintiff Daren Hays, the Gilbert affidavit
states “Mr. Hayes also reports being told from a young age that he suffered from a learning
disability and problems with concentration, although he is unable to recall whether any formal
diagnoses were made by medical professionals.” [R. 358-1 at 28.] Despite the unavailability of
any medical records that refer to his alleged learning disability, Dr. Gilbert opines that “lead,
arsenic, and/or TCE … likely contributed to any existing learning disability and concentration
problems that may exist.” Id.
Unlike the situation explained in the previous section, this is not merely a gap in the
history of treatment. Since the Plaintiff did not provide the name of the diagnosing physician or

Daren Hays [R. 358-1 at ¶ 28]; Barbara Manning [Id. at ¶ 41 (“dizziness, numbness and tingling in her
extremities (undiagnosed)”)]; Chantee (Trumbo) Nolan [Id. at ¶ 44 (“[w]hile . . . not diagnosed with a
balance disorder or specific digestive disorder”)]; Anita Chenault Ross [Id. at ¶ 52) (“reports numbness
and tingling in her extremities, but has not received any formal diagnosis”)]; Vivian Troxler [Id. at ¶ 55
(“any existing chronic coughing spells or respirator problems that may exist”)]; Dejuanna Trumbo [Id. at
¶ 57 (“any existing digestive disorders that may exist”)]; Fannie Walker [Id. at ¶ 61 (“any existing
balance problems that may exist”].

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any medical records that reference his alleged condition or treatment, there is no medical
evidence that Dr. Gilbert was able to review that pertained to Mr. Hays’ alleged learning
disability. As previously stated, Dr. Gilbert conducted a medical review of each Plaintiff and did
not diagnose any illness or condition himself. Therefore, since he did not diagnose Mr. Hays’
learning disability himself and it was not referenced in any of his past medical records, Dr.
Gilbert is without basis for his opinion that Mr. Hays suffers from a learning disability and the
causal connection between his alleged medical condition and Defendants’ actions. Regarding
this specific noncompliance, Plaintiffs do not offer a justification to which the Court can rely
upon.
In this specific scenario, Plaintiffs are not able to fulfill their obligation of presenting a
prima facie case since they are not able to prove an injury in fact exists. Certainly, where there is
personal injury, it is possible to obtain adequate reports of treating physicians and an opinion
as to whether exposure to toxic materials was a contributing factor. Mr. Hays is just an example
of one of the seven Plaintiffs that were not formally diagnosed with an alleged illness based on
Dr. Gilbert’s affidavit and medical records reviewed. In support of this conclusion, there is no
evidence that points toward these Plaintiffs being diagnosed at any point in history with their
alleged illnesses since they are not able to provide any medical documentation whatsoever of
ever being diagnosed or receiving subsequent treatment for such illness. In light of the
foregoing, it is clear that these seven Plaintiffs have not established by expert evidence that they
were damaged since there is no evidence that they have a current illness that can be traced to
Defendants’ negligence. Therefore, the Lone Pine order’s substantive requirements are not met
and Plaintiffs’ personal injury claims must be limited to only the specific illnesses that Dr.
Gilbert was able to conclude had been diagnosed at some point in Plaintiffs’ medical history

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based on evidence of medical records.
E
Defendants further assert that Dr. Gilbert’s affidavit does not comply with the Lone Pine
order’s specificity requirements because many Plaintiffs’ diagnoses reference a general or vague
medical condition or symptom rather than a specific illness. [R. 364 at 10.] For example,
Margot Caldwell alleges in the Fifth Amended Complaint that she suffers from breathing
problems. [R. 308 at ¶ 65.] Dr. Gilbert states in his affidavit that Ms. Caldwell has been
diagnosed with “sinus issues and breathing problems,” as well as unspecified allergies. [R. 3581 at ¶ 11.] Based upon his review of Ms. Caldwell’s medical history and supporting
documentation, he concludes that “lead, arsenic, and/or TCE caused or significantly worsened
the identified diagnosis of breathing problems.” Id.
It is true that the Lone Pine order requires Plaintiffs to describe “the specific illness
allegedly sustained” and a “general, vague description such as ‘cancer’ will not suffice.” [R. 147
at 1 (emphasis added).] In fact, the “exact type of illness must be identified.” Id. However,
Plaintiffs argue that that this “specificity requirement is not directed toward requiring each
Plaintiff’s medical condition to rise to the level of a named disease in order to be compensable.”
[R. 371 at 17.] Instead, Plaintiffs construe the Lone Pine order’s language to mean that Plaintiffs
are to “specifically describe the illnesses with which they have been diagnosed,” which in their
opinion they have fulfilled. Id. In support of their position, Plaintiffs assert that some Plaintiffs’
medical conditions have not risen to the level of a named disease but that “does not mean that
they have not been harmed, diagnosed, or treated.” Id. The Court disagrees with Plaintiffs’
understanding.
As the Lone Pine order explicitly states, Plaintiffs’ alleged illnesses must be an actual

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diagnosis of an illness, not a symptom. [See R. 147 at 1.] In fact, a symptom is referred to as
subjective evidence of disease or physical disturbance. 6 Symptoms can be caused by a number
of conditions; for instance, shortness of breath can be a symptom of COPD, emphysema,
asbestosis, and many other medical conditions. Therefore, many Plaintiffs, such as Margo
Caldwell, fail to list a specific illness that has been diagnosed and instead list only a symptom(s).
In addition, Dr. Gilbert’s affidavit fails to identify an exact type of illness that several
Plaintiffs have been diagnosed with by only including a vague or general description of a
medical problem. For example, Dr. Gilbert and many Plaintiffs state that that they have been
diagnosed with cardiovascular problems, kidney problems, learning disabilities, and thyroid
problems. [See R. 308; R. 358-1.] However, these conditions go against the specificity
requirement of the Lone Pine order because each one of these problems could be a myriad of
various specific illnesses. The Lone Pine order’s example is a good illustration of this failure, as
one cannot just list cancer because this is not an exact type of illness.
Therefore, several Plaintiffs’ personal injury claims must be limited to only the specific
diagnosed illnesses that have been identified by Dr. Gilbert. 7 If Dr. Gilbert has not identified

“Symptom,” Merriam-Webster Online Dictionary, 2020, https://www.merriam-webster.com/dictionary/
symptoms (Sept. 8, 2020).
7
The following is a list of Plaintiffs that violate the Lone Pine order’s specificity requirements and their
personal injury claims should be limited to not include the listed injuries that have been listed in the Fifth
Amended Complaint and/or the Gilbert affidavit: Daniel Bartelson (inflammation around heart,
cardiovascular problems); Harvey Chenault (need for stents, upper intestine issues, gallbladder problems,
atrial fibrillation, hardened arteries); Marthetta Clark (congestion, nasal cavity problems, kidney issues);
Cesirely Coffman (numbness and tingling in extremities, kidney disease, memory problems, nerve
problems, back problems); Sonya Coffman (liver disease, kidney disease); James Dollins (learning
disabilities); Gloria Frye (Johnson) (thyroid problems); Chenice Ganns (shortness of breath, balance
problems); Ann Hawkins (cardiovascular problems); Josetta Hays (thyroid problems) ; Ethel Hunn (heart
palpitations, dizziness); James Hunn (kidney disease, early stage heart disease); Rodney Johnson
(breathing/coughing problems); Tyrone Johnson (tingling in hands and feet, strange scabs on wounds);
Chester Kavanaugh (difficulty breathing, tingling in extremities, cardiovascular problems); Anthony
Manning (kidney problems, skin disorders); Barbara Manning (cardiovascular problems other than high
blood pressure, dizziness, numbness and tingling in extremities, thyroid problems); Michelle (Lavonne)
Morton (dizziness, numbness and tingling in extremities); Connie Mullins (cardiovascular disorder,
6

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any specific illness for each Plaintiff, that particular Plaintiff’s personal injury claim must be
dismissed. 8
F
Finally, Defendants’ last argument addresses the issue that several Plaintiffs allege
medical conditions in the Fifth Amended Complaint that are not addressed in the Gilbert
affidavit as being a result of exposure to hazardous chemicals. [R. 364 at 12.] In response,
Plaintiffs concede that “Dr. Gilbert did not conclude that every ailment listed by every Plaintiff
in the Complaint was casually connected to the Plaintiffs’ exposure to the lead, arsenic, and/or
TCE generated and dispersed by Defendants.” [R. 371 at 23.] For example, John Raines, Jr.,
claims in the Complaint that his alleged exposure to lead, arsenic, and/or TCE caused his
mesothelioma. [R. 308 at ¶ 77.] In the affidavit, Dr. Gilbert acknowledges that Mr. Raines was
diagnosed with mesothelioma in 2002, but he does not opine that Mr. Raines’ mesothelioma was
caused or worsened by his alleged exposure. [R. 358-1 at ¶ 49.]
As to Plaintiffs’ listed medical conditions where there is no medical opinion actually
stating that a particular diagnosis is causally related to some specific exposure, the Court must
dismiss those specific ailments. 9 If the Plaintiffs' expert is unwilling to commit a specific illness
numbness in extremities); Chantee (Trumbo) Nolan (digestive disorders); John Raines, Jr. (numbness in
hands and feet, kidney disorders), Bonita (Johnson) Ramzy (kidney problems/disease, skin and hair
problems); Deborah Stevenson (digestive disorders); Barbara Trumbo (thyroid problems); Dejuanna
Trumbo (digestive disorders, numbness in extremities); William Trumbo (respiratory problems, other
gastrointestinal problems besides colon cancer); Bethel Wade (kidney problems, cardiovascular disease);
Fannie Walker (cardiovascular disease)
8
Margo Caldwell (breathing problems); Darren Hays (chronic anger problems, learning disability,
concentration problems); Dnia Trumbo (behavioral problems, learning disability, comprehension
problems)
9
Harvey Chenault (heart valve replacements, removal of colon due to bleeding); Marthetta Clark
(congestion, nasal cavity problems); Sonya Coffman (high blood pressure, neuropathy); James Dollins
(learning disabilities, numbness and tingling in extremities); Ann Hawkins (cardiovascular problems);
Joseph Johnson (balance disorder); Rodney Johnson (breathing/coughing problems); Tyrone Johnson
(tingling in hands and feet, strange scabs on wounds); Chester Kavanaugh (tingling in extremities); Gloria
Lewis (arthritis, balance problems); Michelle (Lavonne) Morton (memory loss); Connie Mullins (high

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or condition to a causal connection, then the Court cannot conclude that the alleged illness can be
traced to Defendants’ actions. If the expert that Plaintiffs hired is unwilling to opine as to this
basic requirement, who, then, can provide this information? Thus, it can be concluded that under
this scenario, Plaintiffs will be unable to make a prima facie case as it relates the specific
illnesses that Dr. Gilbert does not state that exposure to hazardous waste attributed to Defendants
caused or worsened Plaintiffs’ illness(s). Therefore, once again, Plaintiffs’ personal injury
claims must be limited to only the specific illnesses that Dr. Gilbert addresses as causally
connected to Plaintiffs’ exposure to hazardous waste caused by Defendants.
III
Plaintiffs’ alleged facts are entitled to substantial deference in the face of a motion to
dismiss. In the end, the Court finds Plaintiffs’ attempts to comply with the Lone Pine order
successful and unsuccessful as it pertains to different Plaintiffs. While the provided information
could, at times be more specific, at this stage of the litigation Plaintiffs are required only to
present some evidence in support of their claims. See Steering Comm., 461 F.3d at 604 n. 2.
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as follows:
1.

Defendants’ Motion to Dismiss [R. 316] is GRANTED IN PART and DENIED

IN PART;
2.

The following Plaintiffs’ personal injury claims are DISMISSED WITH

PREJUDICE in their entirety: Latrese Barbour; Margo Caldwell; Deon Duncan; Kelvin Galbreath;
Darren Hays; Gloria Lewis; Michelle (Lavonne) Morton; Chantee (Trumbo) Nolan; John Raines, Jr.;
Brihana Trumbo; Demaya Trumbo; Demmontrell Trumbo; Demonte Trumbo; Dewayne Trumbo; and

Dnia Trumbo; and

blood pressure, dizziness, numbness); John Raines, Jr. (mesothelioma); Bonita (Johnson) Ramzy
(undiagnosed spots on lungs); Deborah Stevenson (cramping in hands and feet, balance disorders)

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3.

The following Plaintiffs’ personal injury claims are not dismissed in their entirety

but are LIMITED to the listed medical conditions/illnesses:
a. Daniel Bartelson – high blood pressure
b. Harvey Chenault – high blood pressure, prostate cancer, and dementia
c. Marthetta Clark – high blood pressure, and vertigo
d. Cesirely Coffman – vertigo, high blood pressure, degenerative bone disease, and
Type 2 diabetes
e. Sonya Coffman – asthma, COPD, Type 2 diabetes, congestive heart failure,
chronic bronchitis, osteoporosis, degenerative joint disease, and reflux/GERD
f. James Dollins – ADHD, high blood pressure, and Type 2 diabetes
g. Gloria Frye – breast cancer and high blood pressure
h. Chenice Ganns – vertigo
i. Ann Hawkins – arthritis and hypothyroidism
j. Josetta Hays – balance disorder
k. Ethel Hunn – high blood pressure
l. James Hunn – COPD, diabetes, and arthritis
m. Joseph Johnson – high blood pressure and localized nerve disorder
n. Rodney Johnson – bone (vertebrae) deterioration
o. Tyrone Johnson – vertigo
p. Chester Kavanaugh – high blood pressure and vertigo
q. Gloria Lewis – high blood pressure
r. Anthony Manning – social anxiety and high blood pressure
s. Barbara Manning – high blood pressure and rheumatoid arthritis

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t. Connie Mullins – dementia
u. Bonita (Johnson) Ramzy – GERD, Lichen Planopilaris, irritable bowel syndrome,
high blood pressure, and heart murmur
v. Anita Chenault Ross – high blood pressure and vertigo
w. Clyde Simpson – COPD and kidney/renal failure
x. Deborah Stevenson – breast cancer
y. Vivian (Johnson) Troxler – high blood pressure
z. Barbara Trumbo – high blood pressure
aa. Dejuana Trumbo - vertigo
bb. William Trumbo – asthma and colon cancer
cc. Bethel Wade – diabetes, vertigo, and high blood pressure
dd. Fannie Walker – high blood pressure and arthritis
This the 9th day of October, 2020.

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