Leichling et al v. Honeywell International, Inc.

Filing 24

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 9/21/2015. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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JANET D. LEICHLING, et al.,
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Plaintiffs,
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v.

Civil Action No. RDB-14-2589

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HONEYWELL INTERNATIONAL, INC.,
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Defendant.
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MEMORANDUM OPINION
Plaintiffs Janet D. Leichling, Dawn M. Rose, Gregory A. Leichling, Catherine L.
Timms, Helen Catterton, and John R. Leichling (collectively, “Plaintiffs”) bring this diversity
action against Defendant Honeywell International, Inc. (“Honeywell” or “Defendant”),
alleging various common law tort claims stemming from the death of John G. Leichling (the
“Decedent”). Specifically, the Plaintiffs claim that the Decedent’s 2012 death from lung
cancer was the direct result of his prolonged exposure to hazardous chromium ore
processing residues at the Dundalk Marine Terminal. Currently pending is Defendant’s
Motion to Dismiss (ECF No. 11).1 The parties’ submissions have been reviewed and no

After Defendant filed the pending Motion to Dismiss, Plaintiffs filed a Second Amended Complaint (ECF
No. 19), in addition to their Response in Opposition to Defendant’s Motion to Dismiss (ECF No. 18).
Rather than file a new motion to dismiss the Second Amended Complaint, Defendant addressed any newlyadded allegations in its Reply (ECF No. 20). Typically, an amended pleading supersedes the earlier pleading
and “renders it of no further legal effect.” Buechler v. Your Wine & Spirit Shoppe, Inc., 846 F. Supp. 2d 406, 414
(D. Md. 2012) (citing Young v. City of Mt. Rainier, 238 F.3d 567, 572 (4th Cir. 2001)). Yet, as this Court has
explained,
[d]efendants should not be required to file a new motion to dismiss simply
because an amended pleading was introduced while their motion was
pending. If some of the defects raised in the original motion remain in the

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hearing is necessary. See Local Rule 105.6 (D. Md. 2014). This action is clearly barred by
Maryland’s statute of repose as set forth in Md. Code Ann., Cts. & Jud. Proc. § 5-108(a) and
does not fall within a statutory exception passed by the Maryland General Assembly as
specifically applied to asbestos. Accordingly, for the reasons that follow, Defendant
Honeywell’s Motion to Dismiss (ECF No. 11) is GRANTED WITH PREJUDICE.
Plaintiffs’ claims are time-barred under Maryland’s statute of repose, thus this case is
DISMISSED WITH PREJUDICE.
BACKGROUND
This Court accepts as true the facts alleged in the plaintiffs’ complaint. See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). This action arises out of the alleged exposure
of the Decedent, John Leichling, to hazardous chromium ore processing residues (“COPR”)
during his employment at the Dundalk Marine Terminal (the “DMT”). Second Amend.
Compl. ¶¶ 1, 6. The Decedent worked at the DMT, a large and active marine shipping
terminal, from 1973 through 2001. Id. ¶ 6. He died on September 11, 2012 from lung
cancer. Id.
From 1854-1985, Defendant Honeywell

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operated a significant chromium

new pleading, the court simply may consider the motion as being addressed
to the amended pleading. To hold otherwise would be to exalt form over substance.
Buechler, 846 F. Supp. 2d at 415 (emphasis in original) (quoting 6 Charles Alan Wright et al., Federal Practice and
Procedures § 1476, at 638 (2010 ed.)) In this case, Honeywell argues that the Second Amended Complaint
reflects the same deficiencies as the First Amended Complaint (ECF No. 4). Accordingly, this Court will
consider the pending Motion as addressing the Second Amended Complaint.
2 From 1854-1954, Mutual Chemical Company (“Mutual Chemical”) operated the chromium plant. Id.¶ 7. In
1954, Allied Chemical & Dye Corporation (“Allied Chemical”) acquired Mutual Chemical as a subsidiary,
wholly incorporating the latter company a year later. Id. ¶ 8. Allied Chemical, which became Allied
Corporation in 1981, merged with Signal Companies in 1985 to form Allied Signal, Inc. Id. Fourteen years
later, Honeywell merged with Allied Signal, Inc. to create the current Honeywell International, Inc. Id.
Plaintiffs thus allege, and this Court will assume, that Defendant Honeywell is the corporate successor of all
debts, liabilities, and obligations of its predecessor entities. Id.

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manufacturing plant in the Fells Point area of Baltimore, Maryland. Id. ¶¶ 7-8. This
chromium manufacturing process produced COPR, a by-product waste material with a “soillike” consistency. Id. ¶¶ 6-7. COPR contains hexavalent chromium, which the
Environmental Protection Agency classifies as a potent carcinogen. Id. ¶ 24. Among other
side effects, hexavalent chromium may cause lung cancer, cancerous stomach tumors, and
other cancers. Id. Hexavalent chromium exposure may occur through ingestion of
Hexavalent chromium-tainted water, or via inhalation of Hexavalent chromium-laced dust
and dirt. Id. ¶¶ 19-21.
Beginning in the 1950s, Honeywell used COPR from the Fells Point chromium plant
as fill to reclaim land from the Patapsco River to be used by the DMT. Id. ¶¶ 14-16; see also
Def.’s Mot. to Dismiss Attach. A, 2, ECF No. 11-2 (“Consent Decree”).3 The Maryland Port
Authority (“MPA”) bought the reclaimed land in 1967 and built the DMT expansion on that
land. Second Amend. Compl. ¶ 11; see also Consent Decree, at 2. The use of COPR to
expand the DMT continued until 1976, when Honeywell ceased dumping COPR on the land
in question.4 Second Amend. Compl. ¶¶ 16-17. Plaintiffs allege that, throughout this period,
Honeywell was aware of the hazardous and toxic nature of COPR, but nonetheless
continued to use the material as fill. Id. ¶¶ 28-36.

The Consent Decree reflects the agreement reached between the Maryland Department of the
Environment, the Maryland Port Authority (the “MPA”), and Honeywell regarding remediation of COPR at
the DMT. See Def.’s Mot. to Dismiss Attach. A. This document is a public record, and a court “may also take
judicial notice of matters of public record without converting a 12(b)(6) motion into a motion for summary
judgment.” Clark v. BASF Salaried Emps.’ Pension Plan, 329 F. Supp. 2d 694, 697 (W.D.N.C. 2004) (quoting
Henson v. CSC Credit Servs. 29 F.3d 280, 284 (7th Cir. 1994) (internal citations omitted)); accord, Norfolk Fed’n of
Business Dist. v. H.U.D., 932 F. Supp. 730, 736 (E.D. Va.), aff’d 103 F.3d 119 (4th Cir. 1996). This Court thus
will consider the extrinsic document in question.
4 COPR use ceased pursuant to an agreement between the MPA and Honeywell, in response to the MPA’s
notification that it would no longer accept COPR at the DMT. Id ¶ 17.
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Plaintiff Janet Leichling is the surviving spouse of the Decedent, John Leichling, as
well as the personal representative of his estate. Id. ¶ 1. Plaintiffs Dawn Rose, Gregory
Leichling, Catherine Timms, Helen Catterton, and John Leichling are the adult children of
the Decedent. Id. ¶ 2. Plaintiffs allege that the Decedent worked on portions of the DMT
that sat directly above the COPR-filled reclaimed land. Id. ¶ 37. During his nearly thirty-year
career at the DMT, the Decedent was allegedly repeatedly exposed to hexavalent chromium
in the COPR via inhalation, ingestion, and dermal contact. Id. ¶¶ 37, 40. Plaintiffs claim that
this prolonged exposure directly caused the Decedent’s lung cancer, from which he died in
2012. Id. ¶¶ 46. 50.
Plaintiffs filed the subject action in the Circuit Court for Baltimore City, Maryland on
May 16, 2014, asserting claims of strict liability, intentional and negligent misrepresentation,
negligence, premises liability, loss of consortium, and wrongful death. See Compl., ECF No.
2; see also Amend. Compl., ECF No. 4. Honeywell timely removed the case to this Court
pursuant to 28 U.S.C. § 1332. See Notice of Removal, ECF No. 1. Honeywell subsequently
moved to dismiss. See Mot. to Dismiss, ECF No. 11. While that motion was pending,
Plaintiffs filed a Second Amended Complaint (ECF No. 19).5
STANDARD OF REVIEW
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain
a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the
dismissal of a complaint if it fails to state a claim upon which relief can be granted. The
As explained supra, this Court will consider Defendant’s Motion to Dismiss as addressed to the Second
Amended Complaint.
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purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The Supreme Court’s recent opinions in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009),
“require that complaints in civil actions be alleged with greater specificity than previously
was required.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted).
As with a statute of limitations, a defendant may raise the statute of repose as a bar
to the plaintiff’s claims as an affirmative defense. See Carlucci v. Han, 886 F. Supp. 2d 497,
514-15 (E.D. Va. 2012) (applying a statute of repose to bar the plaintiff’s claims); see also
Dean v. Pilgrim’s Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005) (permitting a statute of
limitations argument as an affirmative defense). As a motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure “tests the sufficiency of the complaint,” that
motion “generally cannot reach the merits of an affirmative defense, such as the defense that
the plaintiff’s claim is time-barred.” Goodman v. Praxair, Inc. 494 F.3d 458, 464 (4th Cir. 2007).
To properly raise such a defense in a motion to dismiss, the complaint must include
allegations supporting this time bar. Id. In other words, a district court will reach a statute of
repose or limitations defense if the “time bar is apparent on the face of the complaint.”
Dean, 395 F.3d at 474 (citing Bethel v. Jendoco Construction Corp., 570 F.2d 1168 (3d Cir. 1978)).
ANALYSIS
Honeywell moves to dismiss the subject Second Amended Complaint on two
grounds. First, it argues that Maryland’s twenty-year statute of repose, Md. Code Ann., Cts.
& Jud. Proc. § 5-108(a), serves as an absolute bar to Plaintiffs’ claims. Second, Honeywell
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contends that, even if the statute of repose does not apply, each count fails to state a claim
for which relief may be granted. As Plaintiffs’ claims are time-barred under the statute of
repose, this Court need not reach Defendant’s alternative ground for dismissal.
Under Maryland’s statute of repose,
“no cause of action for damages accrues . . . when wrongful
death, personal injury, or injury to real or personal property
resulting from the defective and unsafe condition of an
improvement to real property occurs more than 20 years after
the date the entire improvement first becomes available for its
intended use.”
Md. Code Ann., Cts. & Jud. Proc. § 5-108(a). In other words, this “blanket prohibition”
applies when “(1) the plaintiff’s injuries . . . resulted from the alleged defective and unsafe
condition of ‘an improvement to real property; and (2) 20 years . . . have passed since the
‘entire improvement first bec[ame] available for its intended use.” Rose v. Fox Pool Corp., 643
A.2d 906, 910 (Md. 1994) (quoting § 5-108(a)).
Honeywell argues that Plaintiffs’ claims satisfy both conditions. First, Plaintiffs assert
claims for personal injuries and wrongful death allegedly stemming from an improvement to
real property—the Dundalk Marine Terminal expansion on land reclaimed through COPR
fill. Second, Honeywell contends that more than twenty years have passed since that
improvement became available for its intended use. In response, Plaintiffs do not dispute the
latter point.6 Rather, they argue that, as COPR contains hazardous, carcinogenic hexavalent

Honeywell ceased using COPR as fill in 1976, and the DMT was available for its intended use shortly
thereafter. Second Amend. Compl. ¶¶ 16-17; Consent Decree, at 2. In Maryland, damages occur “when the
injury or damage was discovered.” Burns v. Bechtel Corp., 66 A.3d 1187, 1191 (Md. 2013) (quoting Hilliard &
Bartko Joint Venture v. Fedco Sys., Inc., 533 A.2d 961, 968 (Md. 1987)). If the Decedent’s death is the point of
discovery, then his death in 2012 occurred thirty-six years after the DMT became available for use. If his
diagnosis of lung cancer is the point of discovery, then Plaintiffs’ claims remain time-barred. Plaintiffs do not
include the date of his diagnosis in the Second Amended Complaint. Yet, even if the Decedent was diagnosed

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chromium, it does not constitute an “improvement in real property” within the purview of
Maryland’s statute of repose.
Although § 5-108 does not define “improvement,” Maryland courts define this term
as:
[a] valuable addition made to property (usually real estate) or an
amelioration in its condition, amounting to more than mere
repairs or replacement, costing labor or capital, and intended to
enhance its value, beauty or utility or to adapt it for new or
further purposes. Generally has reference to buildings, but may
also include any permanent structure or other development,
such as a street, sidewalks, sewers, utilities, etc. . . .
Rose, 643 A.2d at 918 (quoting Black’s Law Dictionary, at 757 (6th ed. 1990)); accord Hickman v.
Carven, 784 A.2d 31, 35-36 (Md. 2001); see also Allentown Plaza v. Suburban Propane, 405 A.2d
326, 332 (Md. 1979) (internal citation omitted) (explaining that the common sense definition
of the term “improvement” is “everything that permanently enhances the value of premises
for general uses.”). Under Maryland’s principles of statutory construction, courts should
apply the common sense, ordinary meaning of the term “improvement.” Pippin v. Potomac
Elec. Power Co., 132 F. Supp. 2d 379, 390 (D. Md. 2001).
To construe “improvement” according to its common sense meaning, courts look to
“the nature of the addition of betterment, its permanence and relationship to the land and its
occupants, and its effect on value and use of the property . . .” Rose, 643 A.2d at 918; accord
Potomac Elec. Power Co., 132 F. Supp. 2d at 390 (quoting Lewis v. Weldotron Corp., 61 F. Supp.
2d 435, 437 (D. Md. 1999)). Further, Maryland’s statute of repose encompasses both the
improvement as a whole and any crucial or integral components. Hickman, 784 A.2d at 37-38.
prior to 1996, the applicable statutes of limitations under Maryland law would bar Plaintiffs’ claims. See Md.
Code Ann., Cts. & Jud. Proc. §§ 5-101, 5-113. Regardless, Plaintiffs do not dispute that the twenty-year
period of the statute of repose has expired.

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When the project itself is an improvement to real property, those integral components also
constitute improvements. Id. at 38; see also Pippin v. Reilly Industries, Inc., 64 F. App’x 382, 386
(4th Cir. 20013) (emphasis in original) (holding that, to be an integral component, the “item
[need not] be the only means of achieving a particular purpose . . .”).
In this case, Plaintiffs’ claims arise from the Decedent’s alleged prolonged exposure
to COPR (and hexavalent chromium) while working at the DMT. Honeywell used the
COPR in question as fill to effectuate the expansion of the DMT. With the COPR fill,
former river and marshland was transformed into an active and thriving marine shipping
terminal. This transformation increased the commercial value of the property. Applying
Maryland’s “common sense” approach, the expansion of the DMT clearly constitutes an
“improvement to real property.” Moreover, while other fill materials presumably exist,
Maryland law does not demand that COPR be the only possible material. See Reilly Industries,
64 F. App’x at 386. The COPR fill was an integral component of the DMT expansion, as any
expansion requires land on which to build. As an essential component, the COPR fill falls
within the ambit of § 5-108(a).
Plaintiffs agree that Maryland courts employ a “common sense” approach to
interpreting the term “improvement” under the § 5-108(a), but contend that this term
categorically excludes a material, such as the COPR fill, that is toxic and produces hazardous
side effects. The statute of repose, however, bars causes of actions related to any
improvement in real property, 7 and not solely those improvements comprised of non-

As will be discussed infra, the Maryland General Assembly amended § 5-108 in 1991 to exclude asbestos
manufacturers and suppliers from the purview of the statute. See Md. Code Ann., Cts. & Jud. Proc. § 5108(d).
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hazardous materials. The legislative history of § 5-108 confirms this broad scope. Prior to
1979, § 5-108 enjoyed a seemingly limitless scope. Burns, 66 A.3d at 1192. In that year, the
Maryland General Assembly amended § 5-108 to include a subsection (b), which “created a
more favorable ten-year statute of repose for architects and professional engineers only.” Id.
(citing 1979 Laws of Maryland, Ch. 698; Rose, 643 A.2d at 913-14).
Twelve years later, the General Assembly again amended the statute of repose to
address the increase of civil actions filed by victims of asbestos and its related diseases. Burns,
66 A.3d at 1192-93. Under § 5-108(d), the statute of repose does not extend to “a cause of
action against a manufacturer or supplier for damages for personal injury or death caused by
. . . a product that contains asbestos,” where the injury “results from exposure to asbestos
dust or fibers which are shed or emitted prior to or in the course of the affixation,
application, or installation of . . . the product that contains asbestos to an improvement to
real property[.]” § 5-108(d)(2)(ii). This amendment makes no mention of hexavalent
chromium-related injuries. The statutory exclusion of asbestos-related injuries from the
statute of repose necessarily implies that the General Assembly intended the statute to
protect “manufacturers of products other than those containing asbestos . . .” Rose, 643 A.2d
at 917.
Plaintiffs’ argument essentially asks this Court to expand the exception of § 5-108(d)
from solely asbestos exposure to include exposure to hexavalent chromium. Yet, the General
Assembly specifically did not address hexavalent chromium when it amended the statute of
repose to exclude asbestos. After all, the “cardinal rule of statutory construction is to
effectuate and carry out legislative intent.” Rose, 643 A.2d at 909. As this Court has
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explained, Maryland principles of statutory construction thus prohibit the “insert[ion] or
delet[ion] [of] words to make a statute express an intention different from its clear meaning.”
Harford Mut. Ins. Co. v. Potomac Elec. Power Co., Civ. A. No. RDB-02-2412, 2003 WL
23304961, at *5 (D. Md. Sept. 4, 2003) (quoting Hines v. Potomac Elec. Co., 504 A.2d 632, 634
(Md. 1986)). Under the maxim expressio unius est exclusion alterius,8 the legislature’s inclusion of
explicit exceptions implies that it intended to exclude other similar exceptions. See, e.g., Breslin
v. Powell, 26 A.3d 878, 891 (Md. 2011) (discussing the application of expressio unius in statutory
construction). With respect to § 5-108, the General Assembly included two such
exceptions—the first, architects and professional engineers, and the second, asbestos
exposure—thereby indicating that it intended this statute to apply to all other such
improvements in real property. Plaintiffs, however, ask this Court to override the General
Assembly’s clear intent by inserting an exception for hexavalent chromium.
In sum, Maryland’s statute of repose, § 5-108(a), applies to bar Plaintiffs’ claims in the
subject action. Specifically, the COPR fill alleged to have produced the claimed injuries was
an integral component of the expansion of the DMT, an improvement to real property. As
the alleged injuries arose more than twenty years after the expanded DMT became available
for use, Honeywell is entitled to the protection of § 5-108(a).
CONCLUSION
For the reasons stated above, Defendant Honeywell’s Motion to Dismiss (ECF No.
11) is GRANTED WITH PREJUDICE. Plaintiffs’ claims are time-barred under Maryland’s

Black’s Law Dictionary (9th ed. 2009) defines expressio unius as “to express or include one thing implies the
exclusion of the other, or of the alternative[.]”
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statute of repose, Md. Code Ann., Cts. & Jud. Proc. § 5-108(a), thus this case is DISMISSED
WITH PREJUDICE.
A separate Order follows.
Dated: September 21, 2015

_____/s/_________________________
Richard D. Bennett
United States District Judge

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