Modern Holdings, LLC et al v. Corning, Inc. et al
Filing
576
MEMORANDUM OPINION & ORDER: granting in part and denying in part 503 Motion for Summary Judgment as follows: 1. The motion as to property damage claims arising from TCE or arsenic is GRANTED; 2. The motion as to Plaintiffs' negligence claim s, including that Plaintiffs have failed to prove actionable harm to their properties (Counts IIII) is DENIED; 3. The motion as to Plaintiffs' negligence per se claims (Count IV) is GRANTED; 4. Corning, Inc. and Philips North America's re quest that Counts IIV be barred on statute of limitations grounds is DENIED; 5. Corning, Inc. and Philips North Americas request that Plaintiffs' not be permitted to recover remediation costs as damages for the property damage claims (Counts I IV) is GRANTED; 6. The motion as to Plaintiffs' fraudulent concealment claim (Count VI) is GRANTED; 7. The motion as to Plaintiffs' claims for battery or negligent infliction of emotion distress (Counts V and VII) are GRANTED as to the bellwether Plaintiffs; and 8. The motion as to the individual plaintiffs Melvin Harris, Brenda Carter, Modern Holdings, and Janet Mitchel is DENIED. Signed by Judge Gregory F. VanTatenhove on 3/28/22. (JLM)cc: COR
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
MEMORANDUM OPINION
&
ORDER
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This matter is before the Court on Defendants’ Motion for Summary Judgment on
Plaintiffs’ property damage claims. [R. 503.] For the reasons set forth below, the motion will be
GRANTED IN PART and DENIED IN PART.
I
The Court and parties are very familiar with the factual background and procedural
history of this case. The Plaintiffs include multiple companies and numerous individuals who
own property in close proximity to a glass manufacturing facility located on Vaksdahl Avenue in
Danville, Kentucky. Corning, Inc. owned and operated the facility between 1952 and 1983 and
Philips North America owned and operated the facility between 1983 and 2013. 1 [R. 211 at 2.]
The bellwether Plaintiffs in this case allege that they have suffered property damage because of
the release or dispersion of hazardous materials from the glass manufacturing facility over the
years. Accordingly, Plaintiffs bring numerous claims, including nuisance, trespass, and
Operations technically ceased in 2011 and Philips sold “portions of the Site, including the Facility” back to Corning
in 2013. [R. 311 at 56.]
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negligence. See id. at 63–78. Although these claims were initially brought against both Philips
Electronics North America Corporation and Corning, Inc., 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.]
The lengthy procedural history of this action, which was originally filed in November
2013, has been discussed in detail in previously issued Court orders. [See, e.g., R. 160 at 1–2.]
Therefore, the Court will primarily focus on the pending motion for summary judgment. In the
summary judgment motion, Defendants make the following arguments: (1) Plaintiffs cannot
maintain causes of action as to property damage claims arising from TCE or arsenic; (2)
Plaintiffs’ negligence claims (Counts I–III) should be dismissed because the Plaintiffs have
failed to prove duty, breach, and causation and because Plaintiffs have not proved “actionable
harm” to their properties; (3) Plaintiffs’ negligence per se claims (Count IV) should be dismissed
because there is a lack of evidence of any statutory violations; (4) Plaintiffs’ property damage
claims (Counts I–IV) are barred by the statute of limitations; (5) Plaintiffs cannot recover
remediation costs as damages “under any theory” for the property damage claims (Counts I–IV);
(6) Plaintiffs’ fraudulent concealment claim (Count VI) should be dismissed because there is a
lack of evidence; (7) Claims for battery or negligent infliction of emotion distress (Counts V and
VII) should be dismissed as to these Plaintiffs because those claims are not at issue; and (8) the
property damage claims of Melvin Harris, Brenda Carter, Modern Holdings, and Janet Mitchel
should be dismissed. [R. 503.]
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II
A
Summary judgment is appropriate when the pleadings, discovery materials, and other
documents in the record show “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 323–25 (1986). “A genuine dispute exists on a material fact, and thus
summary judgment is improper, if the evidence shows ‘that a reasonable jury could return a
verdict for the nonmoving party.’” Olinger v. Corp. of the Pres. of the Church, 521 F. Supp. 2d
577, 582 (E.D. Ky. 2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
The moving party bears the initial burden of demonstrating the basis for its motion and
identifying those parts of the record that establish the absence of a genuine issue of material fact.
Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). The movant may satisfy its
burden by showing “that there is an absence of evidence to support the non-moving party’s
case.” Celotex Corp., 477 U.S. at 325. Once the movant has satisfied this burden, the nonmoving party must go beyond the pleadings and come forward with specific facts demonstrating
there is a genuine issue in dispute. Hall Holding, 285 F.3d at 424 (citing Celotex Corp., 477
U.S. at 324).
The Court then must determine “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir.
1989) (quoting Anderson, 477 U.S. at 251–52). In making this determination, the Court must
review the facts and draw all reasonable inferences in favor of the non-moving party. Logan v.
Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001).
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B
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Corning, Inc. and Philips North America first argue that because there is insufficient
evidence concerning arsenic and TCE, the “Plaintiffs may not maintain property damage claims
arising from TCE or arsenic.” [R. 503 at 7.] Plaintiffs do not respond or otherwise address this
argument as it relates to TCE, and the Court finds that Plaintiffs’ claims arising from TCE have
therefore been abandoned. Conner v. Hardee’s Food Systems, Inc., 65 F. App’x 19, 24 (6th Cir.
2003) (finding argument abandoned where plaintiff failed to respond to issue raised in
defendant’s motion for summary judgment); see also Benitez v. Tyson Fresh Meats, Inc., 2022
WL 58399, at *12 n.36 (M.D. Tenn. Jan. 5, 2022) (collecting cases for the proposition that courts
“regularly grant summary judgment on abandoned claims”); Morris v. City of Memphis, 2012
WL 3727149, at *2 (W.D. Tenn. Aug. 27, 2012) (same).
However, Plaintiffs do contest Corning, Inc. and Philips North America’s argument about
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arsenic. Plaintiffs point to the expert opinion of Maurice Lloyd that arsenic was used at the
facility and was “found in high concentrations in sampling conducted both inside and on the roof
of the Facility.” [R. 515 at 4 (citing R. 485-1 at 5).] Plaintiffs also highlight the fact that another
of their experts, Dr. Michele Twilley, found that arsenic was detected on Plaintiffs’ properties in
a “distribution pattern of Arsenic
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