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

Filing 559

MEMORANDUM OPINION & ORDER: 1. Defendant's 466 MOTION to Dismiss is GRANTED IN PART and DENIED IN PART as follows; 2. The following Plaintiffs' personal injury claims are DISMISSED WITH PREJUDICE in their entirety: Robert Bradley Mille r, Christian Robert Cheak, Elana Ford, Holly Gooch, Darlene Hagan, Jonathan Llamas, Misti Llamas, James Ross, Hugh Shepherd, Nancy Vanover, Stacy Wilson as Guardian of her minor son A.B.; 3. It is further ORDERED the following Plaintiffs' perso nal injury claims are not dismissed in their entirety, but are LIMITED to the listed medical conditions/illnesses: a. Marilyn Burgess atrial fibrillation, breast cancer, and high blood pressure, b. Diana (Perry) Coffey vaginal cancer, chronic bronc hitis, COPD, arthritis, and high blood pressure, c. Jennifer Fox lupus and arthritis, d. David Johnson multiple sclerosis and high blood pressure, e. Nathanial Johnson ADHD, f. Clifford Lister high blood pressure and type 2 diabetes, g. Darlene L ister uterine cancer, rheumatoid arthritis, and high blood pressure, h. Alice Miller high blood pressure, thyroid tumors and eczema, i. Robert (Bob) Miller high blood pressure and skin cancer, j. David Owsley atrial fibrillation, high blood press ure, and pancreatitis, k. Charlie Perry high blood pressure, and stroke, l. Steve Reed high blood pressure and diabetes, m. Cara Rogers neuropathy, n. Victoria Troxler breast cancer, o. Gene Walker multiple sclerosis and diabetes. Signed by Judge Gregory F. Van Tatenhove on 1/28/2022.(KM)cc: COR Modified on 1/31/2022 (KM).

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
MODERN HOLDINGS, LLC, et al.,
Plaintiffs
v.
CORNING, INC., et al.,
Defendants.

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Civil No. 5:13-cv-00405-GFVT-EBA
MEMORANDUM OPINION
&
ORDER

***** ***** ***** *****
This matter is before the Court on Defendants Corning Incorporated and Philips
Electronics North America Corporation’s Motion to Dismiss Personal Injury Claims of Newly
Joined Plaintiffs for Failure to Comply with Lone Pine Order. [R. 466.] For the reasons that
follow, the Defendants’ motion will be GRANTED IN PART and DENIED IN PART.
I
After more than eight years of litigation, the Court and parties are well acquainted with
the facts of this case. The Plaintiffs, which includes multiple companies and individuals who
own property and/or reside near a glass manufacturing facility in Danville, Kentucky, sued
Defendants Corning, Inc., which owned and operated the glass manufacturing facility from 1952
to 1983, and Philips North America, which owned and operated the facility between 1983 and
2013. [R. 1.] Plaintiffs claim they have suffered health problems and property damage because
of the release or dispersion of hazardous materials from the glass manufacturing facility. Id.
Accordingly, the Plaintiffs have brought numerous tort claims against the Defendants including

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nuisance, trespass, negligence, battery, fraudulent concealment, and negligent infliction of
emotional distress. Id. at 13–22. Plaintiffs have reached a global settlement with Corning, Inc.,
contingent upon the Plaintiffs providing Corning with a settlement agreement executed by each
Plaintiff within 120 days of December 8, 2021. [R. 544.] However, the litigation between the
Plaintiffs and Philips North America remains ongoing.
On September 28, 2015, Magistrate Judge Edward Atkins imposed a Lone Pine case
management order. [R. 147.] The Court upheld the imposition of the Lone Pine order over the
Plaintiffs’ objections. [R. 160.] Judge Atkins’ Lone Pine order required the following:
(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 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
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diminution allegedly occurred. [R. 147 at 1–2.]
On September 27, 2019, the Defendants filed a motion to dismiss the personal injury
claims of certain Plaintiffs, arguing that the affidavit produced by Dr. Gilbert failed to comply
with the Lone Pine order’s requirements. [R. 364.] In the order addressing Defendants’ motion
to dismiss, the Court: (1) dismissed eight Defendants who failed to provide any Lone Pine
disclosures; (2) accepted the late filing of two Plaintiffs for good cause shown; (3) denied the
motion to dismiss as to Defendants whose diagnoses were attributable to historical third-party
sources or whose diagnoses came from unidentified health care providers and/or of unspecified
dates; and (4) granted the motion to dismiss as to Plaintiffs whose medical conditions are not
referenced in a past medical record, Plaintiffs with medical conditions not addressed as being the
result of exposure to hazardous chemicals, and Plaintiffs whose diagnoses reference a general or
vague medical condition or symptom instead of a specific illness. [R. 431 at 15–17.]
On January 15, 2019, the Court granted the Plaintiffs leave to file their Fifth Amended
Complaint and join additional Plaintiffs to this action. [R. 307.] On February 22, 2021,
Plaintiffs submitted the affidavit of John W. Gilbert, M.D. in compliance with the Court’s Lone
Pine order for the new Plaintiffs. [R. 457-1.] On March 26, 2021, Defendants filed their latest
motion to dismiss certain Plaintiffs for failing to comply with the Court’s Lone Pine order. [R.
466.] Defendants allege that some of the new Plaintiffs failed to provide any Lone Pine
submissions and other Plaintiffs failed to provide sufficient Lone Pine submissions. Id.
II
As the Court has previously expressed, this motion to dismiss is not the time for delving
into any arguments about the overall merits of this case. [R. 431.] The simple question currently
before the Court is whether the affidavits submitted by the newly added Plaintiffs at Docket
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Entry 457-1 complies with the requirements of the Lone Pine order issued by Judge Atkins on
September 28, 2015.
“A Lone Pine order is a pretrial order, based on Lore v. Lone Pine Corp., No. L-3360685, 1986 WL 637507 (N.J. Super. Ct. Law Div. Nov. 18, 1986), that ‘require[s] plaintiffs to
provide facts in support of their claims’ including by expert evidence ‘or risk having their cases
dismissed.’” McMunn v. Babcock & Wilcox Power Generation Group, Inc., 869 F.3d 246, 256
n.9 (3d Cir. 2017) (quoting In re Asbestos Prods. Liab. Litig. (No. VI ), 718 F.3d 236, 240 & n.2
(3d Cir. 2013)). Judge Atkins’s Lone Pine order requires the Plaintiffs to provide certain
information about their personal injury and property damages claims. “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 require Plaintiffs to “produce some evidence to support a credible claim.”
Steering Committee v. Exxon Mobile Corp., 461 F.3d 598, 604 n.2 (5th Cir. 2006).
A
Defendants first argue that Dr. Gilbert’s Affidavit [R. 457-1] fails to address the personal
injury claims of the following eleven new Plaintiffs: Robert Bradley (Robert Bradley Miller);
Christian Robert Cheak; Elana Ford; Holly Gooch; Darlene Hagan; Jonathan Llamas; Misti
Llamas; James Ross; Hugh Shepherd; Nancy Vanover; and Stacy Wilson, as Guardian of her
Minor Son, A.B. [R. 466 at 3.] Plaintiffs, in their response, “concede the Defendants’ Motion”
as it relates to the above eleven individuals. [R. 468 at 28.] Accordingly, and given that these
individuals have failed to produce any evidence to support a credible claim, the Court will grant
the Defendants’ motion as to these eleven individuals.

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B
Defendants next request that the Court limit fifteen of the new personal injury Plaintiffs’
claims to specific illnesses instead of generic symptoms that could be “signs of numerous
underling illnesses.” [R. 466 at 3.] Defendants argue that with respect to fifteen of the new
personal injury Plaintiffs, “the Gilbert Affidavit identifies only vague symptoms, ‘problems,’ or
‘issues’ too generic to support the causation opinion required under the order.” Id. at 4. In fact,
for eleven of the fifteen Plaintiffs, the “vague symptoms, ‘problems,’ or ‘issues’” that the
Defendants argue were alleged in the Complaint are not included in Dr. Gilbert’s Affidavit at all.
[Id. at 4; see also R. 466-1.] The eleven Plaintiffs include: Diana (Perry) Coffey, Jennifer Fox,
David Johnson, Nathaniel Johnson, Clifford Lister, Darlene Lister, Alice Miller, Steve Reed,
Cara Rogers, Victoria Troxler, and Gene Walker. [R. 466 at 4–5.] For example, Defendants
argue that Plaintiff Diana (Perry) Coffey alleged thyroid disorders in her Complaint but that Dr.
Gilbert’s Affidavit included no opinion about thyroid disorders whatsoever. [R. 466-1 at 1.]
Defendants therefore request that Ms. Coffey’s personal injury claim not include thyroid
disorders and instead be limited to vaginal cancer, chronic bronchitis, COPD, arthritis, and high
blood pressure, which are all illnesses specifically addressed in Dr. Gilbert’s Affidavit. Id.
In their Response, the Plaintiffs agree with the Defendants about the eleven Plaintiffs that
certain disorders previously alleged were not diagnosed or addressed in Dr. Gilbert’s Affidavit at
all but argue that the Plaintiffs’ ultimate claims “do not rest on any such diagnosis. [R. 468 at 9–
21.] Therefore, the Court finds it appropriate to allow these eleven Plaintiffs’ claims to proceed
but grant the Defendants’ request to limit the eleven Plaintiffs’ alleged medical conditions to
those included in Dr. Gilbert’s Affidavit.
In addition to the eleven Plaintiffs discussed above, Defendants also seek to limit the
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personal injury claims of Marilyn Burgess to exclude atrial fibrillation; Robert (Bob) Miller to
exclude balance disorders, dizziness, skin disorders, gallbladder removal, colon removal, and
arterial blockage; David Owsley to exclude heart condition, shortness of breath, balance
disorders, tingling and numbness in extremities, and atrial fibrillation; and Charlie Perry to
exclude carotid artery blockages and stroke. [R. 466 at 4.] The Plaintiffs responded that Ms.
Burgess’s atrial fibrillation is a specifically diagnosed medical condition addressed by Dr.
Gilbert’s Affidavit and therefore should not be excluded. [R. 468 at 8.] Plaintiffs agree that
balance disorders, dizziness, skin disorders, gallbladder removal, and colon removal are not
medical conditions with which Mr. Miller has been specifically diagnosed but argue that arterial
blockage is something with which he has been specifically diagnosed. Id. at 15. Plaintiffs also
agree that a heart condition, shortness of breath, balance disorders, and tingling and numbness in
extremities are not medical conditions with which Mr. Owsley has been specifically diagnosed
but argue that atrial fibrillation is something with which he has been specifically diagnosed. Id.
at 16. Finally, Plaintiffs argue that carotid artery blockage and stroke are medical conditions
with which Mr. Perry has been specifically diagnosed. Id. at 17.
The Court finds that Ms. Burgess and Mr. Owsley’s atrial fibrillation constitutes a
specific diagnosed illnesses that can support a personal injury claim in this case. Plaintiff
provides support that atrial fibrillation is a diagnosed illness, and both individuals provided the
date (or date range) and specific diagnosing doctor. 1 The Court also finds that Mr. Perry’s stroke

The Court is aware that it previously prevented Plaintiff Harvey Chenault’s atrial fibrillation personal injury claim
from going forward. [R. 431 at 13 n.7.] However, unlike Plaintiffs Ms. Burgess and Mr. Owsley, Mr. Chenault failed
to identify the name of the medical care provider who made the diagnosis even though the diagnosis was made in
2019 only six months before Dr. Gilbert issued his report. This evinces a lack of due diligence on the part of Mr.
Chenault in violation of the Lone Pine order. The Court made an exception to the Lone Pine requirements for certain
Plaintiffs who “were diagnosed with medical conditions decades ago,” but that exception would not have applied in
Mr. Chenault’s case. Id. at 9. To the extent Mr. Chenault is able to provide the name of the medical care provider
1

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diagnosis is a sufficiently definitive diagnosis to support a personal injury claim. The Plaintiffs
provide evidence that a stroke “is recognized as a diagnosed illness” and Dr. Gilbert’s Affidavit
includes “the specific diagnosis, along with the information relating to the diagnosing physician,
and references to the academic authorities that support the stated causal connection.” Id. at 18.
Therefore, the Court will deny the Defendants’ motion to dismiss as to these claims.
However, for the reasons specified in the Court’s prior motion to dismiss order [see R.
431 at 13], Defendants’ request as to Mr. Miller’s arterial blockage and Mr. Perry’s carotid artery
blockages will be granted. Plaintiffs argue that Dr. Gilbert’s report identifies “a specific” artery
blockage and that this should change the Court’s analysis. [R. 468 at 16, 18.] However, just
because Dr. Gilbert’s report identifies a specific blockage does not mean that arterial blockage
itself is a sufficiently specific illness to satisfy the Lone Pine order. Accordingly, the Court finds
once again that these illnesses are too general to satisfy the Lone Pine order and the will grant the
Defendants’ request as to these two claims.
C
For the same fifteen Plaintiffs addressed above, the Defendants argue that the “Gilbert
Affidavit fails to address all of the illnesses and medical problems alleged in the Fifth Amended
Complaint,” which means there is a gap between certain alleged medical problems and
“Plaintiffs’ alleged exposure to hazardous chemicals.” [R. 466 at 5.] In response, Plaintiffs
agree “that under the Court’s prior rulings, unless Dr. Gilbert’s Affidavit identifies the Plaintiff’s
ailment as a diagnosed medical condition and makes a causal connection between that condition
and the Plaintiff’s exposure, that Plaintiff will be foreclosed from basing his or her personal

who made the atrial fibrillation diagnosis, the Court would consider adding that particular claim back to his case.

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injury claim on that ailment.” [R. 468 at 21–22.] However, Plaintiffs argue that “[t]o the extent
that further evidence indicates that” the alleged medical complaint “is a symptom or
manifestation of any of these diagnosed medical conditions, [the Plaintiffs] should not be
foreclosed from introducing evidence of the same.” [R. 468 at 22–27.]
Here, the Plaintiffs do not attempt to argue that a single one of the illnesses, symptoms,
or medical problems Defendants contest in their motion to dismiss was addressed or even
mentioned in Dr. Gilbert’s affidavit. The Court has previously held that “[i]f Dr. Gilbert has not
identified any specific illness for each Plaintiff, that articular Plaintiff’s personal injury claim
must be dismissed.” [R. 431 at 13–14.] Therefore, the Court will grant this portion of the
Defendants’ motion to dismiss.
III
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as
follows:
1. Defendants’ motion to dismiss [R. 466] is GRANTED IN PART and DENIED IN PART as
follows;
2. The following Plaintiffs’ personal injury claims are DISMISSED WITH PREJUDICE in their
entirety: Robert Bradley Miller, Christian Robert Cheak, Elana Ford, Holly Gooch, Darlene
Hagan, Jonathan Llamas, Misti Llamas, James Ross, Hugh Shepherd, Nancy Vanover, Stacy
Wilson as Guardian of her minor son A.B.;
3. It is further ORDERED the following Plaintiffs’ personal injury claims are not dismissed in
their entirety, but are LIMITED to the listed medical conditions/illnesses:
a. Marilyn Burgess – atrial fibrillation, breast cancer, and high blood pressure
b. Diana (Perry) Coffey – vaginal cancer, chronic bronchitis, COPD, arthritis, and high blood
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pressure
c. Jennifer Fox – lupus and arthritis
d. David Johnson – multiple sclerosis and high blood pressure
e. Nathanial Johnson – ADHD
f. Clifford Lister – high blood pressure and type 2 diabetes
g. Darlene Lister – uterine cancer, rheumatoid arthritis, and high blood pressure
h. Alice Miller – high blood pressure, thyroid tumors and eczema
i. Robert (Bob) Miller – high blood pressure and skin cancer
j. David Owsley – atrial fibrillation, high blood pressure, and pancreatitis
k. Charlie Perry – high blood pressure, and stroke
l. Steve Reed – high blood pressure and diabetes
m. Cara Rogers – neuropathy
n. Victoria Troxler – breast cancer
o. Gene Walker – multiple sclerosis and diabetes
This the 28th day of January, 2022.

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