Bohning et al v. Mallinckrodt LLC et al

Filing 17

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' motion for reconsideration and judgment on the pleadings is GRANTED. (Doc. No. 427 .) IT IS FURTHER ORDERED that the parties shall carefully confer and, within 14 days of the date of this Order, shall advise the Court of their agreed or respective positions as to which Plaintiffs filed PAA public liability actions alleging wrongful death more than three years after the date of death of their decedents. Signed by District Judge Audrey G. Fleissig on October 31, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SCOTT D. MCCLURG, et al.,
Plaintiffs,
vs.
MALLINCKRODT, INC., et al.,
Defendants.

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Case No. 4:12-CV-00361-AGF
Lead Case

MEMORANDUM AND ORDER
Plaintiffs in these consolidated actions seek damages under the Price-Anderson Act
(“PAA”) as amended, 42 U.S.C. §§ 2014, 2210, for injuries allegedly sustained as a result
of multiple decades of exposure to hazardous, toxic, and radioactive substances handled by
Defendants Mallinckrodt, Inc. and Cotter Corporation at various times between 1942 and
1973, at or near Plaintiffs’ residences in north St. Louis County, Missouri.
The matter is now before the Court on Defendants’ motion (Doc. No. 427) for
partial reconsideration of the Court’s prior denial of Defendants’ motion to dismiss, on
statute-of-limitations grounds, and for judgment on the pleadings with respect to those
Plaintiffs who filed claims to recover for the deaths of their decedents more than three
years after the deaths. Defendants seek this relief based on a new Missouri Supreme
Court opinion. For the reasons set forth below, the Court will grant Defendants’ motion.
BACKGROUND
In June 2014, Defendants moved to dismiss Plaintiffs’ complaints, partly on
statute-of-limitations grounds. As relevant here, Defendants argued that Plaintiffs whose
PAA claims alleged death as a result of exposure to the substances at issue were governed

by Missouri’s three-year statute of limitation for wrongful death actions, Mo. Rev. Stat. §
537.100. Defendants argued that such claims accrued at the time of death and that
because several Plaintiffs filed suit more than three years after the death of their decedents,
those claims had to be dismissed as time-barred.
In response to Defendants’ motions to dismiss, Plaintiffs conceded that Missouri’s
three-year statute of limitations applied to their PAA claims alleging wrongful death. But
Plaintiffs argued that federal common law governed the accrual date for those claims, and
that under federal law, “[a] claim ‘accrues’ when the plaintiff knows or reasonably should
know both the existence and cause of the injury.” See Slaaten v. United States, 990 F.2d
1038, 1041 (8th Cir. 1993) (applying federal common law to determine when a claim under
the Federal Tort Claims Act accrues).1 Alternatively, Plaintiffs argued that to the extent
their claims were deemed to accrue earlier under state law, such state law was preempted
by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(“CERCLA”), 42 U.S.C. §§ 9601-9675.
On February 27, 2015, the Court denied Defendants’ motions to dismiss on
statute-of-limitations grounds. (Doc. No. 262.) The Court held that it did not need to
resolve whether federal or state law governed the accrual date of Plaintiffs’ claims in this
case because even under Missouri law, Plaintiffs’ claims did not accrue until they knew or
reasonably should have known of the wrongful nature of their decedents’ deaths. The

1

Many of the Plaintiffs at issue pleaded that they “neither knew nor reasonably
should have known that the decedent’s death was caused or contributed to by exposure to
radiation until less than three years before commencement of this action.” See, e.g., Case
No. 4:14-cv-00671, Doc. No. 1 at 7.
2

Court relied on the holding of the Missouri Court of Appeals in Boland v. St. Luke’s Health
System, Inc., No. WD 75364, 2013 WL 6170598, at *7 (Mo. Ct. App. Nov. 26, 2013)
(“Boland I”), that under Missouri law, “[a] wrongful death cause of action does not
necessarily accrue at the time of death; rather, it accrues at the time that a diligent plaintiff
has knowledge of facts sufficient to put him on notice of an invasion of his legal rights.”
Several months later, on August 18, 2015, a 4-3 majority of the Missouri Supreme
Court reversed Boland I and unequivocally held that, under Missouri law, “a wrongful
death claim accrues at death,” subject to only two exceptions contained in the statute of
limitations itself, Mo. Rev. Stat. § 537.100, and not applicable here. Boland v. St. Luke’s
Health Sys., Inc., 471 S.W.3d 703, 710 (Mo. 2015), as modified (Oct. 27, 2015) (“Boland
II”). 2 The court made clear that Missouri does not delay accrual of wrongful death claims
based on a discovery rule such as the one advocated by Plaintiffs. Id. at 710.
The state high court in Boland II also considered whether the statute of limitations
could be equitably tolled, or whether the defendants could be equitably estopped from
asserting a statute-of-limitations defense, due to the defendants’ alleged fraudulent
concealment of the tortious nature of the deaths in that case.3 Id. at 710-11. The court
held that no such equitable exception for fraudulent concealment could apply. Id. The
court reasoned that, despite the “harsh result,” it was obligated to follow the mandate of the
2

These two exceptions are “a tolling provision for defendants who abscond from the
state to avoid personal service and a one-year savings provision if the plaintiff files a
voluntary non-suit or the plaintiff’s judgment is reversed and remanded on appeal.”
Boland II, 471 S.W.3d at 707; see also Mo. Rev. Stat. § 537.100.
3

The plaintiffs in Boland II alleged that their decedents were intentionally killed by a
hospital employee, that the hospital was aware of the employee’s actions, and that the
hospital acted affirmatively to conceal the suspicious nature of the deaths.
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state legislature, which had created a “special statute of limitation” for wrongful death,
itself a creature of statute. Id. at 705, 712-13.
The three dissenting judges in Boland II agreed that, under § 537.100, a wrongful
death claim accrues at death and cannot be equitably tolled. However, the dissenting
judges would have allowed equitable estoppel to bar the defendants from asserting the
statute-of-limitations defense based on their fraudulent concealment. Id. at 714-19
(Draper, J., dissenting in part).
On the same day that Boland II was issued, a different 4-3 majority of the Missouri
Supreme Court issued a seemingly conflicting opinion in State ex rel. Beisly v. Perigo, 469
S.W.3d 434 (Mo. 2015).4 In Beisly, the court again considered the effect, if any, on
§ 537.100’s statute of limitations when a defendant fraudulently concealed his
wrongdoing, making it impossible for the plaintiff to bring her wrongful death action
within three years of the decedent’s death. 469 S.W.3d at 436. As in Boland II, a
majority of the court in Beisly held that § 537.100 was a special statute of limitations for
wrongful death claims; that wrongful death claims accrued at death; and that the statute of
limitations could not be tolled for reasons not provided in § 537.100 itself. Id. at 438-40.
However, contrary to its holding in Boland II, the court in Beisly held that a defendant who
fraudulently concealed his wrongdoing could be equitably estopped from asserting a
statute-of-limitations defense. Id. at 444-45. In so holding, the court reasoned:
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The conflict appears to have resulted from the recusal of one of the Missouri
Supreme Court judges (and replacement by a Missouri Court of Appeals judge on special
assignment) in Beisly, but not in Boland II. See Beisly, 469 S.W.3d at 445 (Fischer, J.,
dissenting). The two cases were also in different procedural postures, with Boland II
involving a direct appeal and Beisly involving a petition seeking a writ of prohibition. Id.
4

The application of equitable estoppel does nothing to engraft a tolling
mechanism or otherwise extend the statute of limitations beyond what is
stated expressly in the statute. The cause of action still accrues at the
decedent’s death, and the statute of limitations begins to run at that time.
Equitable estoppel does not toll the running of the statute. Rather, it
forecloses the wrongdoer, who concealed his or her actions fraudulently,
from asserting the defense.
Id. at 444.
On September 2, 2016, Defendants in the present case filed their motion to
reconsider and for judgment on pleadings. Defendants argue that, in light of Boland II,
the Court should reconsider its prior denial of Defendants’ motion to dismiss on
statute-of-limitations grounds and should grant Defendants judgment on the pleadings with
respect to those Plaintiffs who filed PAA claims asserting wrongful death more than three
years after their decedents’ deaths. Defendants’ motion originally identified 74 such
Plaintiffs, see Doc. No. 427-1, but in their reply brief, Defendants acknowledge that two of
these Plaintiffs timely filed their claims on the last day of the three-year period.5
In response, Plaintiffs argue that, in light of the conflicting rulings of Boland II and
Beisly and absent further guidance from the Missouri Supreme Court, the Court should
decline to reconsider its prior holding. Plaintiffs also reassert the arguments they raised in
opposition to Defendants’ original motion to dismiss, that federal law governs the accrual
date of Plaintiffs’ claims and that, to the extent the Court finds that Missouri law governs
the accrual date and prohibits delayed accrual, CERCLA preempts Missouri law.

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With respect to the other 72 Plaintiffs listed in Doc. No. 427-1, the Court has
already dismissed some of these Plaintiffs’ claims against Cotter (but not Mallinckrodt) on
other grounds, relating to Plaintiffs’ failure to plead a breach of the applicable federal dose
limit.
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DISCUSSION
A “district court has the inherent power to reconsider and modify an interlocutory
order any time prior to the entry of judgment.” K.C. 1986 Ltd. P’ship v. Reade Mfg., 472
F.3d 1009, 1017 (8th Cir. 2007); see also Fed. R. Civ. P. 54(b) (“[A]ny order or other
decision, however designated, that adjudicates fewer than all the claims . . . may be revised
at any time before the entry of a judgment adjudicating all the claims[.]”). District courts
have substantial discretion in ruling on motions for reconsideration. However, in general,
“[m]otions for reconsideration serve a limited function: to correct manifest errors of law or
fact or to present newly discovered evidence.” Hagerman v. Yukon Energy Corp., 839
F.2d 407, 414 (8th Cir. 1988) (citation omitted).
A motion under Federal Rule of Civil Procedure 12(c) for judgment on the
pleadings is subject to “the same standard used to address a motion to dismiss for failure to
state a claim under Rule 12(b)(6).” Ashley Cty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665
(8th Cir. 2009). To survive a motion to dismiss for failure to state a claim, a plaintiff’s
allegations must contain “sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The reviewing court must accept
the plaintiff’s factual allegations as true and construe them in plaintiff’s favor, but it is not
required to accept the legal conclusions the plaintiff draws from the facts alleged. Id.;
Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766, 768-69 (8th Cir.
2012).

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As an initial matter, although Plaintiffs do not dispute that the 72 Plaintiffs
identified by Defendants in Doc. No. 427-1 filed their claims more than three years after
their decedents’ deaths, the Court notes that the claim filed on behalf of decedent Dawn
McDonald appears to have been filed within the three-year period.6
Moreover, the Court notes that there may be a question as to the computation of the
limitations period with respect to at least some of the other Plaintiffs listed in Doc. No.
427-1. Missouri Supreme Court Rule 44.01(a), which applies to § 537.100’s statute of
limitations for wrongful death claims, Bowling v. Webb Gas Co. of Lebanon, 505 S.W.2d
39, 42 (Mo. 1974), provides that:
In computing any period of time prescribed or allowed by these rules, by
order of court, or by any applicable statute, the day of the act, event, or
default after which the designated period of time begins to run is not to be
included. The last day of the period so computed is to be included, unless it is
a Saturday, Sunday or a legal holiday, in which event the period runs until
the end of the next day which is neither a Saturday, Sunday nor a legal
holiday.
Rule 44.01, Mo. S.Ct. R. Identical language appears in Mo. Rev. Stat. § 506.060.1.7
Applying such computation, the Court’s review suggests that at least a few of the
Plaintiffs listed in Doc. No. 427-1 (in addition to Dawn McDonald and the two Plaintiffs

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Doc. No. 427-1 states that the claim on behalf of Dawn McDonald was filed on
April 1, 2014, less than three years from the date of Ms. McDonald’s death, which (as
listed by Defendants) was April 4, 2011.
7

Federal law also provides similar time-computation rules. See Fed. R. Civ. P.
6(a)(1).
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whom Defendants concede timely filed their claims) may have filed their claims within
three years from the date of their decedents’ death.8
Therefore, although the Court will grant Defendants’ motion for the reasons
discussed below, the Court will ask the parties to carefully confer regarding which
Plaintiffs’ claims were filed more than three years after the date of death and to advise the
Court of their agreed or respective positions.
Turning then to the merits of Defendants’ motion, the Court concludes that Boland
II requires the Court to reconsider its prior holding that, under Missouri law, Plaintiffs’
public liability actions alleging wrongful death did not accrue until they knew or
reasonably should have known of the wrongful nature of their decedents’ deaths. Such
reconsideration also requires the Court to decide whether Missouri law, in fact, governs the
accrual and limitations period of the claims at issue. The Court concludes that it does, and
that under Missouri law, such claims accrued on the date of death and are therefore
untimely to the extent they were filed more than three years after the date of death.
The Court recounted the history of the PAA in its prior Memorandum and Order
(Doc. No. 262) and will not repeat it here. But in relevant part, Congress amended the
PAA in 1988 to create a federal “public liability action” for injuries arising out of or
resulting from any “nuclear incident.”9 42 U.S.C. § 2210(n)(2). A public liability action

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For example, Doc. No. 427-1 lists the claims on behalf of decedents James Bess and
Peter Lind Jackson as having been filed three years and one day after the date of the
decedents’ death. But in both cases, the day preceding the filing date appears to have been
a Saturday, Sunday, or legal holiday.
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A “nuclear incident” is defined broadly as “any occurrence . . . within the United
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under the PAA is a “federal cause of action.” O’Conner v. Commonwealth Edison Co., 13
F.3d 1090, 1099-1100 (7th Cir. 1994). But the PAA provides that “the substantive rules
for decision in such action shall be derived from the law of the State in which the nuclear
incident involved occurs, unless such law is inconsistent with the provisions of [§ 2210 of
the PAA].” 42 U.S.C. § 2014(hh).
For the most serious nuclear incidents known as “extraordinary nuclear
occurrences”10 (“ENOs”),” the PAA contains a “waiver of defenses” section, which
provides that a statute-of-limitations defense may be waived “if suit is initiated within three
years from the date on which the claimant first knew, or reasonably could have known, of
his injury or damage and cause thereof, but in no event more than ten years after the date of
the nuclear incident.” Id. § 2210(n)(1). The federal courts have construed this waiver
provision as either establishing a limitations period for actions arising out of an ENO,
Corcoran v. N.Y. Power Auth., 202 F.3d 530, 542 (2d Cir. 1999), or as applying “a
discovery rule” to actions arising out of an ENO “if the action would otherwise be barred

States causing . . . bodily injury, sickness, disease, or death, or loss of or damage to
property, or loss of use of property, arising out of or resulting from the radioactive, toxic,
explosive, or other hazardous properties of source, special nuclear, or byproduct material.”
Id. § 2014(q).
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An “extraordinary nuclear occurrence” is defined more narrowly as “any event
causing a discharge or dispersal of source, special nuclear, or byproduct material from its
intended place of confinement in amounts offsite, or causing radiation levels offsite, which
the Nuclear Regulatory Commission or the Secretary of Energy, as appropriate, determines
to be substantial, and which the Nuclear Regulatory Commission or the Secretary of
Energy, as appropriate, determines has resulted or will probably result in substantial
damages to persons offsite or property offsite.” 42 U.S.C. § 2014(j).
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by a state statute of limitations,” Lujan v. Regents of Univ. of Cal., 69 F.3d 1511, 1515
(10th Cir. 1995).
But Plaintiffs do not allege that their claims arise out of an ENO, and with respect to
other nuclear incidents, the PAA provides neither a limitations period nor a discovery rule.
Rather, as the Court previously held, and the parties agree, with respect to public liability
actions arising out of nuclear incidents other than ENOs, federal courts apply the
limitations period of the state-law cause of action most analogous to the federal claim—in
this case, § 537.100’s three-year statute of limitations for wrongful death claims. See,
e.g., Corcoran, 202 F.3d at 542; Lujan, 69 F.3d at 1517; Nieman v. NLO, Inc., 108 F.3d
1546, 1561 (6th Cir. 1997) (“[W]e note that § 2210(n)(1) applies only to ENOs, not all
nuclear incidents; therefore, presumably Congress intended not to alter the state law
statutes of limitations for nuclear incidents that are not ENOs.”).
Whether federal or state law governs the accrual date of Plaintiffs’ claims—the
subject of the parties’ dispute—turns on whether accrual of Plaintiffs’ claims is substantive
or procedural. As discussed above, “the substantive rules for decision” in a public
liability action arising out of nuclear incidents other than ENOS “shall be derived” from
state law “unless such law is inconsistent with” the PAA. 42 U.S.C. § 2014(hh).
“[W]here a statute of limitations does not merely bar the remedy for the violation of
a right but limits or conditions the right itself, courts have treated the statute [and its
corresponding accrual rules] as substantive.” Lujan, 69 F.3d at 1517. In Missouri, the
limitations period for a wrongful death claim is of the latter variety in that it is “a necessary
condition attached to the right to sue—not merely a statute of limitations in the ordinary
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sense.” Crenshaw v. Great Cent. Ins. Co., 527 S.W.2d 1, 4 (Mo. Ct. App. 1975); see also
Lujan, 69 F.3d at 1517 (collecting cases for the proposition that limitations period
contained in wrongful death statutes are generally held to be substantive in that they
operate as a limitation of liability). Therefore, the Court finds that Missouri’s limitations
period and corresponding accrual rule for wrongful death claims are substantive and
control here so long as they are not inconsistent with the PAA.
As discussed above, Boland II requires the Court to conclude that, under Missouri
law, wrongful death claims accrue at death and no discovery rule applies. See Boland II,
471 S.W.3d at 710; accord Beisly, 469 S.W.3d at 438-40. Any conflict between Boland II
and Beisly as to whether a defendant may be equitably estopped from asserting a
statute-of-limitations defense due to his own fraudulent concealment does not alter the
Court’s conclusion, because Plaintiffs have never alleged that Defendants engaged in
fraudulent concealment.
The Court also concludes that applying Missouri’s limitation period and accrual
rule to Plaintiffs’ public liability actions asserting wrongful death would not be
inconsistent with the PAA. The Court is persuaded by the Tenth Circuit’s reasoning in
Lujan, in which the court applied New Mexico’s wrongful death limitations period (which,
like Missouri, accrues at death and does not include a discovery rule to delay accrual) to a
plaintiff’s public liability action seeking to recover for her daughter’s death arising out of a
non-ENO nuclear incident. Lujan, 69 F.3d at 1518. The Tenth Circuit recognized that
application of the state limitations period “may lead to harsh or unjust results in cases such
as this involving latent injuries.” Id. at 1521. Nevertheless, the court held that it was
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bound by the plain language of the PAA, which “as written does not mandate application of
a discovery rule in a case [arising out of a non-ENO nuclear incident]” but instead requires
federal courts to “look to state law.” Id. at 1519. Plaintiffs have not cited, and the Court
has not found, any contrary authority. Therefore, the Court will apply Missouri’s
limitations period and accrual rule for wrongful death actions to conclude that Plaintiffs’
public liability actions asserting wrongful death are untimely to the extent they were filed
more than three years after death.
The Court also agrees with Defendants that CERCLA has no effect here.
CERCLA provides:
In the case of any action brought under State law for personal injury, or
property damages, which are caused or contributed to by exposure to any
hazardous substance, or pollutant or contaminant, released into the
environment from a facility, if the applicable limitations period for such
action (as specified in the State statute of limitations or under common law)
provides a commencement date which is earlier than the federally required
commencement date [defined as “the date the plaintiff knew (or reasonably
should have known) that the personal injury [was] caused or contributed to
by the hazardous substance or pollutant or contaminant concerned”], such
period shall commence at the federally required commencement date in lieu
of the date specified in such State statute.
42 U.S.C. §§ 9658(a)(1), (b)(4)(A). Plaintiffs have not cited, and the Court has not found,
any authority for the proposition that CERCLA would displace the state limitations period
applicable to a PAA public liability action. By its plain terms, CERCLA applies to cases
“brought under state law.” Id. § 9658(a)(1). As discussed above, Plaintiffs’ public
liability actions constitute federal causes of action, arising under a federal statute expressly
providing that its substantive rules shall be derived from state law. Cf. Freier v.
Westinghouse Elec. Corp., 303 F.3d 176, 183 (2d Cir. 2002) (cited by Plaintiffs but
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applying CERCLA to state-law wrongful death and personal injury claims that the federal
court heard under its diversity jurisdiction). The Court does not believe that CERCLA
applies here.
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants’ motion for reconsideration and
judgment on the pleadings is GRANTED. (Doc. No. 427.)
IT IS FURTHER ORDERED that the parties shall carefully confer and, within 14
days of the date of this Order, shall advise the Court of their agreed or respective positions
as to which Plaintiffs filed PAA public liability actions alleging wrongful death more than
three years after the date of death of their decedents.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 31st day of October, 2016.

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