Sweener v. Saint-Gobain Performance Plastics Corporation et al

Filing 40

DECISION AND ORDERED, that Defendants Certification Motion (Dkt. No. 37) is DENIED. Signed by Senior Judge Lawrence E. Kahn on May 16, 2018. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANN SWEENER,
Plaintiff,
-against-

1:17-CV-532 (LEK/DJS)

SAINT-GOBAIN PERFORMANCE
PLASTICS CORPORATION, et al.,
Defendants.

DECISION AND ORDER
I.

INTRODUCTION
This action is one of several before the Court stemming from the contamination of

groundwater with perfluorooctanoic acid (“PFOA”) in the Village of Hoosick Falls, New York.
Dkt. No. 16 (“Amended Complaint”) ¶¶ 16–18. Plaintiff Ann Sweener alleges that defendants
Saint-Gobain Performance Plastics Corp. and Honeywell International Inc. contaminated the
Village’s groundwater by discharging PFOA from one or more manufacturing facilities they
operated within the Village. Id. According to Plaintiff, this contamination caused her to suffer
personal injuries, including uterine cancer. Id. ¶ 69. On February 21, 2018, Defendants moved to
certify for interlocutory appeal the Court’s February 7, 2018 memorandum-decision and order.
Dkt. Nos. 37 (“Certification Motion”), 37-1 (“Memorandum”); see also Dkt. No. 34 (“February
Order”). For the reasons that follow, Defendants’ Motion is denied.
II.

BACKGROUND
The Court assumes familiarity with the facts underlying this action and provides as

background the procedural history giving rise to the Certification Motion. On August 7, 2017,

Defendants moved to dismiss the Amended Complaint. Dkt. No. 27 (“Motion to Dismiss”).
Defendants argued that Plaintiff’s claims were untimely under New York Civil Practice Law and
Rules (“CPLR”) § 214-c and 42 U.S.C. § 9658, a provision of the Comprehensive Environmental
Response, Compensation, and Liability Act (“CERCLA”) that preempts state statutes of
limitations for certain claims based on exposure to harmful substances. Dkt. No. 27-1
(“Dismissal Memorandum”) at 3–14. Additionally, Defendants argued that Plaintiff could not
rely on CPLR § 214-f to revive her claims because construing this provision to revive
time-barred claims would violate the Due Process Clause of the New York State Constitution. Id.
at 15–22.
In the February Order, the Court found “that Plaintiff’s claims are not timely under
§ 214-c.” Feb. Order at 7. The Court observed that § 214-c provided “a maximum of six years
from the discovery of injury to commence an action.” Id. at 7. The Court then observed that, “for
purposes of § 214-c, ‘discovery of injury’ occurs ‘when the injured party discovers the primary
condition on which the claim is based.’” Id. at 7–8 (quoting Bano v. Union Carbide Corp., 361
F.3d 696, 709 (2d Cir. 2004)). The “primary condition on which the claim is based” in Plaintiff’s
case was her cancer, “which was diagnosed in August 2010.” Id. at 9. The statute of limitations
therefore ran on Plaintiff’s claims in August 2016, and her claims were untimely under § 214-c
because she did not commence this action until May 2017. Id.
The Court then turned to § 214-f, which “provides that ‘an action to recover personal
damages for injury caused by contact with or exposure to any substance or combination of
substances contained within an area designated as a superfund site’ under New York or federal
law ‘may be commenced by the plaintiff within the period allowed pursuant to [§ 214-c] or
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within three years of such designation of such an area as a superfund site, whichever is latest.’”
Id. at 15 (quoting § 214-f). The Court found that Plaintiff’s claims were timely under § 214-f
because she commenced this action “less than a year and a half after New York designated the
Superfund site in Hoosick Falls.” Id.
The Court rejected Defendants’ argument that § 214-f violated their due process rights
under the New York State Constitution. Id. The Court noted that, in In re World Trade Center
Lower Manhattan Disaster Site Litigation, the New York Court of Appeals stated that claim
revival statutes like § 214-f satisfy due process requirements if the statute “was enacted as a
reasonable response in order to remedy an injustice.” Id. at 16 (quoting In re World Trade Ctr.
Lower Manhattan Disaster Site Litig., 89 N.E.3d 1227, 1243 (N.Y. 2017)). The Court found that
§ 214-f was a reasonable response to an injustice because it allowed plaintiffs “who suffer latent
injuries stemming from environmental contamination[] to pursue claims that would otherwise be
time-barred simply because a defendant’s tortious conduct was unknown,” and because the
statute gave plaintiffs a “modest” three years from the date of Superfund designation to bring a
claim. Id. at 17–18. Therefore, the Court found that § 214-f did not offend Defendants’ due
process rights and denied their Motion to Dismiss. Id. at 18–19.
On February 21, 2018, Defendants moved to certify the February Order for interlocutory
appeal, seeking review of the Court’s decision that § 214-f did not violate due process. Mem.
Plaintiff opposed the Certification Motion. Dkt. No. 38 (“Opposition”).
III.

LEGAL STANDARD
28 U.S.C. § 1292 allows the district court, when issuing an otherwise unappealable order,

to permit an interlocutory appeal to the appropriate circuit court. Specifically, § 1292(b) states
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that, when a district judge is “of the opinion that [an interlocutory] order involves a controlling
question of law as to which there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the ultimate termination of the
litigation, he shall so state in writing in such order.” When a denial of a motion to dismiss (or, as
in this case, a grant in part and denial in part) “‘involves a new legal question or is of special
consequence,’ then the district court ‘should not hesitate to certify an interlocutory appeal.’”
Balintulo v. Daimler AG, 727 F.3d 174, 186 (2d Cir. 2013) (quoting Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 111 (2009)).
“However, interlocutory appeals ‘are strongly disfavored in federal practice.’” Evolution
Fast Food Gen. P’ship v. HVFG, LLC, No. 15-CV-6624, 2018 WL 1779377, at *4 (S.D.N.Y.
Mar. 28, 2018) (quoting In re Ambac Fin. Grp., Inc. Sec. Litig., 693 F. Supp. 2d 241, 282
(S.D.N.Y. 2010)). A party may not seek interlocutory appeal “as a vehicle to provide early
review of difficult rulings in hard cases.” Id. (quoting In re Levine, No. 94-44257,
2004 WL 764709, at *2 (S.D.N.Y. Apr. 9, 2004)). Rather, “only ‘exceptional circumstances will
justify a departure from the basic policy of postponing appellate review after the entry of a final
judgment.’” Id. (quoting In re Flor, 79 F.3d 281, 284 (2d Cir. 1996)). Moreover, “[t]he ultimate
decision of whether to certify an interlocutory appeal ‘is entirely a matter of discretion for the
district court.’” Nypl v. JPMorgan Chase & Co., No. 15-CV-9300, 2018 WL 1276869, at *4
(S.D.N.Y. Mar. 12, 2018) (quoting In re Roman Catholic Diocese of Albany, N.Y., Inc., 745 F.3d
30, 36 (2d Cir. 2014)).

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IV.

DISCUSSION
The Court declines to certify the February Order for interlocutory appeal because it finds

no substantial ground for difference of opinion regarding the constitutionality of § 214-f. As
stated earlier, § 214-f satisfies due process requirements if it was enacted “as a reasonable
response in order to remedy an injustice.” In re World Trade Ctr., 89 N.E.3d at 1243. The Court
analyzes Defendants’ challenges to the February Order under this framework.
A. “Reasonable Response”
1. Novel Legal Issue
Defendants argue that, because the New York Court of Appeals’ decision in In re World
Trade Center only recently “clarified the standard for due process challenges to revival statutes,”
the constitutionality of § 214-f is a novel legal issue, and there consequently exists a substantial
ground for difference of opinion. Mem. at 4–5. To begin with, Defendants mischaracterize In re
World Trade Center as announcing a significant departure from prior caselaw discussing the
constitutionality of revival statutes. In In re World Trade Center, the Court of Appeals
summarized three of its prior decisions regarding due process requirements for revival statutes:
Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989), Robinson v. Robins Dry Dock &
Repair Co., 144 N.E. 579 (N.Y. 1924), and Gallewski v. H. Hentz & Co., 93 N.E.2d 620
(N.Y. 1950). 89 N.E.3d at 1242–43. The Court of Appeals stated that “[t]he salient facts in each
of Robinson, Gallewski and Hymowitz fall into the same pattern. First, there existed an
identifiable injustice that moved the legislature to act. . . . Second, in each case, the legislature’s
revival of the plaintiff’s claims for a limited period of time was reasonable in light of that
injustice.” Id. at 1243. In other words, In re World Trade Center did not announce a novel
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standard that rendered irrelevant wide swaths of prior caselaw. Rather, it clarified the applicable
standard in a manner that explicitly acknowledged that prior jurisprudence on this issue was still
good law, regardless of the specific wording those courts applied.
Finally, even if In re World Trade Center had announced a novel standard, “[t]he mere
presence of a disputed issue that is a question of first impression, standing alone, is insufficient
to demonstrate a substantial ground for difference of opinion.” Nypl, 2018 WL 1276869, at *4
(quoting In re Flor, 79 F.3d at 284). “Rather, ‘[i]t is the duty of the district judge . . . to analyze
the strength of the arguments in opposition to the challenged ruling when deciding whether the
issue for appeal is truly one on which there is a substantial ground for dispute.’” In re Flor,
79 F.3d at 284 (quoting Max Daetwyler Corp. v. Meyer, 575 F. Supp. 280, 283 (E.D. Pa. 1983)).
2. Agency Action and Non-Delegation
Defendants also challenge the February Order by arguing that, because § 214-f ties the
accrual of a claim to a decision by either the United States Environmental Protection Agency
(“EPA”) or the New York State Department of Environmental Conservation (“DEC”) to
designate a Superfund site, the statute is not a reasonable response to an injustice. Mem. at 5.
Defendants made the same argument in support of their Motion to Dismiss. Feb. Order at 18. The
Court was unpersuaded by this argument because “Defendants cite no cases to suggest that
limitations periods must be triggered by parties’ actions in order to be valid. In fact, New York
cases suggest the opposite.” Id. (citing Gallewski, 93 N.E.2d at 625, and Robinson, 144 N.E.
at 583).
As with their Motion to Dismiss, Defendants cite no cases for that proposition in support
of their Certification Motion. Rather, they try to distinguish the cases that the February Order
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offered to suggest that revival statutes triggered by actions of third parties could still be
reasonable. Mem. at 7–8 (citing Feb. Order at 18). However, the Court remains unpersuaded. To
reiterate, Gallewski and Robinson both involved decisions by the Legislature to revive causes of
action in response to actions by third parties. Gallewski, 93 N.E.2d at 625 (discussing the
Legislature’s decision to retroactively toll the statute of limitations in response to German
occupation of the plaintiff’s home country during World War II); Robinson, 144 N.E. (discussing
a statute that revived expired causes of action in response to a decision by the Supreme Court).
Defendants’ observation that Gallewski and Robinson involved a decision by the Legislature to
extend the statute of limitations, Mem. at 7–8, does not meaningfully distinguish the revival
statutes at issue in those cases from § 214-f. Section 214-f still represents the Legislature’s
decision to revive certain expired claims, even if the trigger for each revival is dependent on
agency action.
Furthermore, Defendants’ argument that § 214-f is unreasonable because a Superfund
designation “decision may occur at any time, including years or even decades after the events out
of which a plaintiff’s claim arises,” Mem. at 6, is unpersuasive because this concern applies
equally to any expired claim that could potentially be revived. Regardless of whether an agency’s
designation of a Superfund site revives a cause of action or whether a third party causes an event
that prompts the Legislature to enact a revival statute, defendants may be subject to lawsuits for
long-forgotten alleged wrongs. Similarly, in both cases, “the vagaries of time and memory” may
impact the quality of available evidence. Ackerman, 644 N.E.2d at 1012. In short, the mere fact
that the trigger for the revival of claims under § 214-f is agency action does not impact the

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reasonableness of the statute, and does not show the existence of a substantial ground for
difference of opinion.
Defendants also argue that § 214-f is unreasonable because it constitutes an
impermissible delegation by the New York Legislature to EPA and DEC. Mem. at 6. This
argument does not suggest that there is a substantial ground for difference of opinion. It is
well-settled that, while “the Legislature cannot pass on its law-making functions to other
bodies, . . . there is no constitutional prohibition against the delegation of power, with reasonable
safeguards and standards, to an agency or commission to administer the law as enacted by the
Legislature.” Boreali v. Axelrod, 517 N.E.2d 1350, 1354 (N.Y. 1987) (quoting Matter of Levine
v. Whalen, 349 N.E.2d 820, 822 (N.Y. 1976)).
Section 214-f provides that a personal injury action can be commenced within three years
of the date of a Superfund site designation. Defendants do not argue that DEC or EPA lack
“reasonable safeguards and standards” constraining the ability of these agencies to designate
Superfund sites. Nor could they. New York Environmental Conservation Law § 27-1305
empowers DEC to designate a Superfund site if DEC determines that the site “[c]aus[es] or
present[s] an imminent danger of causing irreversible or irreparable damage to the public health
or environment” or if the site poses a “[s]ignificant threat to the public health or environment.”
N.Y. Envtl. Conserv. Law § 27-1305(1). CERCLA requires EPA to consider, among other
things, “relative risk or danger to public health or welfare or the environment . . . , taking into
account . . . the population at risk, the hazard potential of the hazardous substances at such
facilities, the potential for contamination of drinking water supplies, the potential for direct
human contact . . . and other appropriate factors.” 42 U.S.C. § 9605(a)(8)(A).
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New York courts regularly reject non-delegation challenges against statutes that permit
agencies to exercise as much or more discretion than those at issue here. See Matter of Levine,
349 N.E.2d at 822 (upholding a statute that required the agency to consider “protection and
promotion of the health of the inhabitants of the State” and to provide “fit and adequate”
facilities); Matter of Sullivan Cty. Harness Racing Assn. v. Glasser, 283 N.E.2d 603, 606–07
(N.Y. 1972) (upholding statute that required the agency to issue licenses when the issuance
would “be in the best interests of racing generally” and when “the public interest, convenience, or
necessity” would be served). Because the statutes governing the designation of a superfund site
by either DEC or EPA do not violate the non-delegation principle, neither does § 214-f.
For these reasons, the Court finds that Defendants have not demonstrated that there exist
substantial grounds for disagreement regarding whether § 214-f was enacted as a “reasonable
response” to an injustice.
B. Injustice
Defendants also challenge the February Order by arguing that § 214-f was not enacted “in
order to remedy an injustice.” Mem. at 9 (quoting In re World Trade Ctr., 89 N.E.3d at 1243). In
the February Order, the Court determined that “[§] 214-f was enacted to allow individuals such
as Plaintiff, who suffer latent injuries stemming from environmental contamination, to pursue
claims that would otherwise be time-barred simply because a defendant’s tortious conduct was
unknown.” Feb. Order at 17. Defendants argue that this “conclusion overlooks the fact that”
§ 214-c, which “instituted a discovery rule for the latent effects of exposure to any substance,”
already addressed “this purported ‘injustice.’” Mem. at 9 (quoting Hymowitz, 539 N.E.2d
at 1073). Furthermore, Defendants argue that § 214-f was not enacted to remedy an injustice
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because it arbitrarily revives claims for “plaintiffs who suffer latent injuries as a result of
exposure to substances at a superfund site” while not reviving claims for plaintiffs who receive
“any other types of latent injuries.” Id. at 10. Neither of these arguments is convincing.
First, Defendants’ opinion that § 214-c is sufficient for people injured in a manner similar
to Plaintiff was not shared by the Legislature, which enacted § 214-f in part to ensure that
“[i]ndividuals in Hoosick Falls should not be denied any legal recourse simply because the
statute of limitations has run on a claim they never knew that they had.” Feb. Order at 17
(quoting Sponsor Memo, S. 6824A (N.Y. 2016)). The Legislature was permitted to determine
that § 214-c afforded an inadequate opportunity to people like Plaintiff, whose claims under that
statute expired years ago. In light of the Court of Appeals’ observation that, “[i]n the context of a
claim-revival statute, there is no principled way for a court to test whether a particular injustice is
‘serious’ or whether a particular class of plaintiffs is blameless,” In re World Trade Ctr., 89
N.E.3d at 1243, the Court rejects Defendants’ reasoning.
Second, regarding Defendants’ observation that § 214-f revives claims for plaintiffs in
Superfund sites but not other plaintiffs who suffer from latent injuries, it is unclear why this
would warrant the conclusion that the statute was not enacted to remedy an injustice. The
Legislature is surely permitted to respond to society’s numerous injustices in a piecemeal
fashion. The Legislature is subject to no arbitrary and capricious requirement that prevents the
sort of line-drawing that Defendants criticize. Moreover, due process cannot require that a claim
revival statute should fail for underinclusively addressing injustice, because this requirement
would result in the failure of nearly every conceivable revival statute. For instance, the revival
statute in Gallewski would fail because the Legislature chose to revive claims for plaintiffs
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whose countries were occupied by Germans during World War II, but not for plaintiffs who
suffered occupation by other powers during other wars.
For these reasons, Defendants have not demonstrated that there exist substantial grounds
for disagreement regarding the constitutionality of § 214-f. Accordingly, the Court denies
Defendants’ Motion to certify the February Order for interlocutory appeal.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Certification Motion (Dkt. No. 37) is DENIED; and it is

further
ORDERED, that the Clerk of the Court shall serve copies of this Decision and Order on
all parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

May 16, 2018
Albany, New York

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