Brown et al v. Whirlpool et al

Filing 46

Order. Plaintiffs motion to strike (Doc. 42 ) denied; Defendants motion to dismiss (Doc. 33 ) denied with regard to counts 1 and 2 and plaintiffs ability to seek recovery for loss of consortium with respect to counts 1 and 2; and Defendants motion to dismiss otherwise granted as stated herein. Judge James G. Carr on 2/10/2014.(G,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Wendy Brown, et al.,

Case No. 3:13CV1092
Plaintiffs

v.

ORDER

Whirlpool Corporation,
Defendant

This suit, brought under diversity jurisdiction and governed by Ohio law, has its origins in
a well-documented cancer cluster in eastern Sandusky County, Ohio.
Plaintiffs are fifty-eight Sandusky County residents who assert claims for wrongful death,
personal injury, and property damage against defendant Whirlpool Corporation. They allege
Whirlpool dumped toxic waste at sites near its manufacturing plant in Clyde, Ohio, and emitted
pollutants, carcinogens, and volatile organic compounds (VOCs) into the air. Plaintiffs contend that,
as a result of their exposure to those substances, they and/or their decedents developed cancer,
disabilities, and other maladies.
Now pending are Whirlpool’s motion to dismiss for failure to state a claim (Doc. 33) and
plaintiffs’ motion to strike certain exhibits to Whirlpool’s motion (Doc. 42). For the following
reasons, I deny the motion to strike and grant in part and deny in part the motion to dismiss.

Background

A. Emissions from the Clyde Plant
Since 1954, Whirlpool has manufactured appliances at its plant in Clyde, a city in the
southeast corner of Sandusky County.
During the manufacturing process, Whirlpool applied a coat of paint to each piece of steel
used to build appliances. Before September, 2005, Whirlpool used a two-dip protocol, which
involved dipping steel twice into vats of paint. In September, 2005, Whirlpool switched to a singledip protocol. However, the paint applied during that process did not adhere properly to the steel,
resulting in steel that was unfit for use.
Thereafter, Whirlpool started using a new type of paint that, when combusted, “produced
much greater air pollution with a much higher amount of volatile organic compounds (VOCs), some
of which are known or suspected carcinogens.” (Doc. 23 at ¶52). According to plaintiffs, the smoke
stacks through which Whirlpool emitted the combusted paint were too short “to place the VOCs or
other toxins at a level where [they] would not fall upon the city of Clyde.” (Id. at ¶54).
According to plaintiffs, Whirlpool aggravated this emissions problem with its handling of
steel parts coated with the non-adhering paint. Whirlpool employees took that steel to a “koline
building where [they] would burn off the paint.” (Id. at ¶55). The combusted paint would flow
through the same smoke stacks that were too short to ensure that no VOCs fell onto Clyde. Plaintiffs
also allege Whirlpool’s smoke-stack system lacked regenerative thermal oxidizers.
In 2008, “long after Whirlpool stopped using the one dip system,” the Ohio Environmental
Protection Agency (Ohio EPA) began monitoring the air and drinking water in and around Clyde.
(Id. at ¶70). Testing of the “ambient air emissions from the Whirlpool plant,” in 2009 and 2010,
“found unacceptable levels” of acetone, benzene, butane, butanone, chlorodfluoromethane,

2

dichlorodfluoromethane, hexmethylene chloride, pentane, and trichloroflouromethane.” (Id. at
¶158).
In June, 2012, the United States Environmental Protection Agency (EPA) issued a report on
testing it conducted at the Clyde plant. The EPA found polychlorinated biphenyls (PCBs) – a class
of known carcinogens – and dichloromethane present in amounts exceeding the EPA’s regional
screening level (RSL). (Id. at ¶¶159-160).
In 2012 or 2013, plaintiffs retained Vanilla Environmental Partners to test air quality in
Clyde. Vanilla collected dust samples from the attics of six homes in the area, tested them for heavy
metals, VOCs, and other substances, and issued a report (the Vanilla Report).
Plaintiffs allege the Vanilla Report identified “a residual of benzaldehyde blanket[ing] the
entire Clyde area.” (Doc. 23 at ¶60). The Report itself, which plaintiffs attach to their complaint,
does not refer to such a “blanket,” but states benzaldehyde was detected in the attics of six homes
in Clyde. While the Vanilla Report also noted that benzaldehyde “has not been well studied for
human health effects” (Doc. 23-1 at 10),plaintiffs allege benzaldehyde is a suspected carcinogen,
a mutagen, and a “marker” of carcinogens and VOCs previously released into the air. (Id. at ¶167).
Plaintiffs acknowledge that Whirlpool has denied using benzaldehyde in its “core
manufacturing process.” (Doc. 23 at ¶166). However, plaintiffs allege that: 1) Whirlpool refuses to
define its core manufacturing process; and 2) on reasonable information and suspicion,
benzaldehyde is a component of Whirlpool’s core manufacturing process.
The Vanilla Report further determined no PCBs were present in the attic dust samples. And
while some of those samples tested positive for heavy metals, there was no “identifiable pattern in
the results.” (Id.).

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B. Clyde Cancer Cluster
In 2006, the citizens of Clyde noticed an unusually high incidence of cancer among their
children. Both the Sandusky County Health Department (SDHC) and the Ohio Department of Health
(ODH) analyzed the cancer rate and confirmed that it was higher than expected.
In May, 2009, ODH and the Ohio State University prepared a study entitled “Investigation
of Potential Clustering of Invasive Cancers among Children, Adolescents[,] and Young Adults in
Sandusky County, Ohio, 1996-2006.” (Doc. 33-7 at 1).
The study confirmed a childhood cancer spike in Clyde. According to the study, the expected
cancer rate in the United States for a population of 100,000 children is 32.2 children with cancer.
The area in which the Clyde cancer spike was detected has a childhood population of 4,206, and the
expected cancer rate among this population is 1.35 children with cancer. However, “[o]ver 43
children in Eastern Sandusky County have gotten cancer from 2000 to 2013.” (Doc. 1 at ¶81).
Plaintiffs allege the ODH-OSU study found “there was a 95% Statistical probability that
[the] cancer spike was related to an external source.” (Doc. 23 at ¶83). The report contains no such
finding,1 though it did conclude “[t]he probability of observing these clusters due to chance alone
was low.” (Doc. 33-7 at 20).

1

Whirlpool attached the study to its motion to dismiss. Because the study is a matter of
public record, referred to in the complaint, and central to plaintiffs’ allegations, I may consider it
in evaluating the motion to dismiss. Wyser-Pratte Mgmt. Co. v. Telxon Corp., 413 F.3d 553, 560
(6th Cir. 2005). Because the report itself contradicts plaintiffs’ representation of the study’s
conclusions, the study trumps the complaint. Girgis v. Countrywide Home Loans, Inc., 733
F. Supp. 2d 835, 843 (N.D. Ohio 2010).
4

Plaintiffs’ complaint also refers to another ODH investigation that found “no common source
of exposure to carcinogens common to all children affected in the cancer cluster.” (Doc. 23-1 at
¶85).
The ODH disclosed the results of its investigation with concerned citizens in May, 2009.
Shortly thereafter, the EPA set up a tip line to receive information about Whirlpool’s alleged
connection to the cancer cluster. The tip line helped authorities identify fourteen locations within
Sandusky County where Whirlpool allegedly dumped toxic manufacturing waste.
C. Dump Sites
According to plaintiffs, Whirlpool hauled “appliance porcelain coating residuals, paints,
solvents[,] and other waste products” from the Clyde plant and dumped that material at fourteen
sites. (Doc. 23 at ¶89). The EPA studied twelve of those sites, and the complaint describes the EPA’s
findings at six sites.
During the 1960s, Whirlpool allegedly hauled daily shipments of sludge from the Clyde Plant
to the Amert Lagoon, located on Clyde’s west side. The EPA found:
•

High concentrations of benzene, barium, arsenic, boron, and nickel, which allegedly
“caused a cumulative cancer risk”;

•

Cobalt, iron, lead, and nickel present in the soil at levels exceeding the RSL for each
substance;

•

Lead in the water around Amert Lagoon at a level exceeding the National Primary
Drinking Water Regulations maximum contaminant level (MCL);

•

Antimony, arsenic, barium, and lead present in the groundwater and leachate at
levels exceeding the relevant MCL; and

•

VOCs, semi-volatile organic compounds, and arcolor 1254 PCBs in soil samples at
levels exceeding the relevant RSLs.

(Doc. 23 at ¶¶95-96, 103-104).
5

Whirlpool also used trenches at the Amert Lagoon site to dispose of liquid waste. Some of
these trenches abutted Racoon Creek and, during the EPA investigation, agents saw waste seeping
from the west bank of the dumping grounds into the Creek.
In brief, the more pertinent results of EPA’s testing at five other dump sites were:
Location
Golembiowski
Dump

Dumping
Operations

1/2 mile west of
Clyde and
immediately
south of Amert
Lagoon

Since 1969,
received
wastewater
sludge from the
Clyde Plant

Soil Samples

N/A

Groundwater
Samples
Boron: 2.6
mg/L

Surrounded by
private
residences
Green Greek
Dump

Not specified

Witness reports
indicate
Whirlpool
dumped for
several years

PCB Arcolor
1254: 0.96 mg/kg
Benzo(a)anthracene: 0.19 mg/kg
N/A
Benzo(a)pyrene:
0.069 mg/kg
Lead: above
NPDW maximum

Leach Dump

Rural/residential
area roughly one
mile west of
Clyde

Wastewater
sludge from the
Clyde plant
dumped onto
ground

Thallium: 0.78
mg/kg
Benzo(a)pyrene:
0.015 mg/kg
PCB Arcolor
1254: 0.22 mg/kg

6

Boron:
62 mg/L

Shaw Road
Dump

McGrath
Dump

Rural/residential
area south of
Clyde

Used as a dump
for several years

Rural/residential
area 2.5 miles
north of Clyde

Industrial solid
and liquid
wastes dumped
on property
from 1965
through 1968

Benzoprene, iron,
lead, antimony,
hexavalent, and
chromium present
“in unacceptable
levels”

N/A

Levels of arsenic
and iron above
respective RSLs
SVOCs, including
benzo(a)anthracene and
benzo(a)-pyrene
present above
respective RSLs

N/A

Iron, lead,
antimony, and
chromium found
“in unacceptable
levels”
Plaintiffs allege that the Whirlpool dump sites “have allowed many of the above pollutants,
many of which are known human carcinogens . . . to blow through the wind or migrate to the water
onto the citizens of Clyde and Eastern Sandusky County.” (Doc. 23 at ¶140).
D. Whirlpool Park
Whirlpool allegedly deposited “sludge materials,” which plaintiffs allege was hazardous
waste, on property in Green Springs, Ohio, that Whirlpool previously owned. At some point, while
the property was still in Whirlpool’s control, Whirlpool converted this property into a park for its
employees, their families, and the general public. (Id. at ¶144).
EPA testing of soil samples from Whirlpool Park, as this property is called, established that:
1) PCBs in the sub-surface soil exceeded the relevant safety thresholds; and 2) “total metals were

7

present in the subsurface soil at levels exceeding the EPA’s RSL for residential properties[.]” (Id.
at ¶148).
In public statements, Whirlpool denied knowledge of the polluted soil at Whirlpool Park.
However, plaintiffs allege that “drawings on file in the Sandusky County [c]ourt house show that
the basketball court, tennis court, and pool were built after Whirlpool bought the park.” (Id. at ¶149).
Plaintiffs note that, in August, 2013, the Ohio EPA started a new round of testing at
Whirlpool Park.
E. The Lawsuit
Plaintiffs assert seventeen claims against Whirlpool for negligence, strict liability/ultrahazardous activities, reckless conduct, trespass, continuing nuisance, and fraud.
The fifty-eight plaintiffs fall into three groups. Plaintiffs in the first group – the Childhood
Cancer Cluster plaintiffs – seek redress for the deaths of their children, who perished from various
types of cancer after exposure to toxic substances emitted or dumped by Whirlpool.
Plaintiffs in the second group – the Whirlpool Park Health Cluster plaintiffs – live or used
to live near Whirlpool Park. They contend that, as a result of their exposure to airborne pollutants
and toxic sludge, they developed cancers, disabilities, and other diseases.
Plaintiffs in the third group – the Property Damage plaintiffs – seek compensation for an
alleged decline in their property values, which they attribute to Whirlpool’s emitting and dumping
practices.
Discussion
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the complaint “must contain
sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Ashcroft v.

8

Iqbal, 556 U.S. 662, 678 (2009). When reviewing a motion to dismiss, I construe the complaint in
the light most favorable to the plaintiff and accept all well-pled allegations as true. U.S. ex rel.
Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 501 (6th Cir. 2007).
The complaint must contain a “short and plain statement of the claim showing the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Although Rule 8 does not require detailed factual
allegations, it does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” In re Porsche Cars N. Am., Inc., 880 F. Supp. 2d 801, 814 (S.D. Ohio 2012). A
plaintiff’s obligation “to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombley, 550 U.S. 544, 555 (2007).
At bottom, the complaint must “state a claim to relief that is plausible on its face.” Id. at 570.
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, supra, 556
U.S. at 678.
A. Motion to Strike
Before considering the adequacy of the complaint, I must decide whether, and to what extent,
I should grant plaintiffs’ motion to strike exhibits two through ten to defendant’s motion to dismiss.
Those exhibits include reports by the EPA, the Ohio EPA, and ODH. The reports contain those
agencies’ findings with respect to, inter alia, the air quality in and around Clyde, possible causes
of the childhood cancer cluster, and the toxicity of benzaldehyde.
Plaintiffs concede I have authority to take judicial notice of these documents, which are a
matter of public record. (Doc. 42 at 2). They also agree I may do so without converting defendants’

9

motion to one for summary judgment. But plaintiffs argue Whirlpool relies on those documents for
an impermissible purpose: namely, to contradict or dispute certain facts alleged in the complaint.
Whirlpool argues I should, in light of plaintiffs’ concession, deny the motion as moot. It also
asserts I can – and should – take judicial notice of its exhibits because the exhibits “are cited or
selectively quoted in [the] Complaint and are integral to [plaintiffs’] claims.” (Doc. 44 at 7).
In evaluating a motion to dismiss, a court generally cannot look beyond the complaint and
attached exhibits. E.g., Blesedell v. Chillicothe Tel. Co., 2013 WL 6096329, *2 (S.D. Ohio).
However, exhibits to a motion to dismiss are considered part of the pleadings if the plaintiff’s
complaint refers to those exhibits and the exhibits are central to plaintiff’s claims. Rondigo LLC v.
Town of Richmond, 641 F.3d 673, 680-681 (6th Cir. 2011).
Moreover, I may judicially notice matters of public record without converting a 12(b)(6)
motion into a motion for summary judgment. Wyser-Pratte, supra, 413 F.3d at 560; cf. Fed. R. Civ.
P. 12(c) (if court considers matters outside pleadings, it generally must convert motion to dismiss
into one for summary judgment).
Given plaintiffs’ concession that I have authority to take judicial notice of defendants’
exhibits, and my conclusion that the exhibits are, at least to some extent, appropriate for judicial
notice, I will deny the motion to strike.
That does not mean I will consider the exhibits for the purposes urged by Whirlpool.
“When considering public documents in the context of a motion to dismiss, [I] may not
accept a document to decide facts that are in dispute.” In re Cardinal Health Inc. Sec. Litig., 426
F. Supp. 2d 688, 713 (S.D. Ohio 2006). Furthermore, even when an exhibit is part of the pleadings,

10

“it is not always appropriate to assume everything in an exhibit is true.” Carrier Corp. V.
Outokumpu Oyj, 673 F.3d 430, 441 (6th Cir. 2012).
As the Sixth Circuit explained:
Although a blanket adoption rule makes sense in the context of an attached contract
or loan agreement because the contract represents an agreement between two or more
parties to which the law binds them, the rule makes much less sense when, as is the
case here, the exhibit is not a legally dispositive document.
Id. at 442.
Here, my review of Whirlpool’s motion to dismiss and its opposition to plaintiff’s motion
to strike leaves no doubt that Whirlpool would have me use its exhibits “not merely to prove [their]
existence but rather to prove the truth of matters within them.” Id.
For example, plaintiffs allege that, after testing in 2009 and 2010, the Ohio EPA detected
“unacceptable levels” of various substances, including benzene, in “the ambient air emissions from
the Whirlpool Plant.” (Doc. 23 at ¶158).
Whirlpool calls that allegation into question by reference to its Exhibit 3, which details the
Ohio EPA’s findings regarding the quality of ambient air in Clyde generally. Notably, that study
does not appear to have tested emissions from Whirlpool’s Clyde plant itself. Nevertheless,
Whirlpool argues Exhibit 3 “negate[s] Plaintiffs conclusory allegations that their illnesses were
caused by exposure to toxins release or produced by Whirlpool.” (Doc. 43 at 13).2
Considering Exhibit 3 for that purpose “would impermissibly allow [Whirlpool] to question
the evidentiary foundation of [plaintiffs’] complaint, thereby depriving [plaintiffs] of the

2

Whirlpool also argues that plaintiffs’ failure to dispute or account for certain conclusions
in the reports justifies dismissal of the complaint. These arguments may have merit should this case
reach summary judgment, but they are presently premature.
11

presumption of truth to which [they are] entitled at this stage of the litigation.” Carrier Corp., supra,
673 F.3d at 442.
I am mindful of the tension between certain allegations in the complaint, which for present
purposes I accept as true, and the findings in Whirlpool’s exhibits, which call into question a fair
number of plaintiffs’ allegations. However, at this stage of the litigation plaintiffs can “draw facts
from [those reports] to provide a starting point and then use those facts to construct a theory that
differs from or even contradicts [the findings] of the [government agencies].” Id.
Therefore, unless otherwise noted, I will not consider the exhibits to Whirlpool’s motion in
evaluating whether the complaint states a plausible claim.
B. Negligence Claims
Plaintiffs assert three negligence claims against Whirlpool.
In counts one and two, plaintiffs allege: 1) Whirlpool breached its duty to dispose of its
manufacturing waste safely; and 2) that breach caused the deaths of five children and cancers and
other diseases in other plaintiffs.
In count eleven, plaintiffs contend that Whirlpool’s negligent handling of its chemical waste
proximately caused “a significant loss of property values and stigma to the plaintiffs’ property.”
(Doc. 23 at ¶271).
To state a negligence claim under Ohio law, plaintiffs must allege: 1) the existence of a legal
duty; 2) the breach of that duty; and 3) harm proximately caused by the breach. Mussivand v. Davis,
45 Ohio St. 3d 314, 318 (1989).
When, as in this case, the defendant’s negligence leads to an alleged release of toxic
substances, the proximate cause element has two components: general causation and specific

12

causation. Terry v. Caputo, 115 Ohio St. 3d 351, 355 (2007). To satisfy the causation element, a
plaintiff must show: “(1) that the toxin is capable of causing the medical condition or ailment”; and
“(2) that the toxic substance in fact caused the claimant’s medical condition[.]” Id.
There is no dispute that Whirlpool owed plaintiffs a duty of care, so I turn to whether the
complaint adequately alleges a breach and proximate cause.
1. Breach
Whirlpool first argues that, to state a breach of duty, plaintiffs must allege “Whirlpool
improperly disposed of or released one or more of the toxic substances” identified in the complaint.
(Doc. 33-1 at 13). Plaintiffs have not done so, Whirlpool contends, because: 1) there is no basis to
infer Whirlpool emitted benzaldehyde; 2) the allegations that Whirlpool emitted airborne pollutants
are implausible; and 3) the allegations that Whirlpool disposed of manufacturing waste at multiple
dumping grounds are “nonspecific.” (Id. at 15).
Plaintiffs respond that they adequately allege Whirlpool breached its duty of care by
releasing benzaldehyde, a suspected carcinogen, and other known carcinogens like benzene, lead,
and benzo(a)anthracene. Plaintiffs also emphasize that the Ohio EPA found “unacceptable” amounts
of benzene – a known carcinogen – coming from the Clyde plant. (Doc. 23 at ¶156).
Viewed in the light most favorable to plaintiffs, the complaint alleges Whirlpool has for
many decades polluted the land and air surrounding the Clyde plant. Plaintiffs allege Whirlpool
dumped hazardous, carcinogenic waste at over a dozen sites in southeastern Sandusky County, and
that government testing of the soil confirmed the presence of benzene, lead, PCBs, and other toxic
substances. Moreover, air samples from the Clyde plant itself showed that Whirlpool released
“unacceptable levels” of benzene and other hazardous materials as recently as 2009 and 2010.

13

Furthermore, the complaint alleges plaintiffs were exposed to these substances through
airborne emissions, their proximity to the Clyde plant one or more dump sites, and, in one case, a
plaintiff’s visits to Whirlpool Park.
Accepting these allegations as true, which I must at this stage of the litigation, Carrier Corp.,
673 F.3d at 441-442, I find plaintiffs have adequately shown Whirlpool breached its duty of care.
Whirlpool’s arguments to the contrary lack merit.
First, in arguing there is no basis to infer Whirlpool emitted benzaldehyde, defendant’s
ignore plaintiffs’ allegation that benzaldehyde “is used in Whirlpool’s core manufacturing process.”
(Doc. 23 at ¶166). Although plaintiffs make that allegation on “belief and suspicion” (id.), I consider
the allegation well-pled – especially given the related allegation that Whirlpool refuses to define its
core manufacturing process. Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008) (“allegations may
be based on information and belief when facts are peculiarly within the opposing party’s
knowledge”).
Second, Whirlpool’s argument that plaintiffs “acknowledg[e] that Whirlpool does not use
benzaldehyde in its core manufacturing process” (Doc. 33-1 at 13) misrepresents what the complaint
actually says.
Plaintiffs have acknowledged Whirlpool’s claim that it does not use benzaldehyde (Doc. 23
at ¶166), but they dispute the truth of that claim. Simply informing me of Whirlpool’s position was
not an acknowledgment or admission that Whirlpool does not use or emit benzaldehyde. Cf. Gale
v. Hyde Park Bank, 384 F.3d 451, 452 (7th Cir. 2004) (“That the bank said [it was not at fault] in
email messages that [plaintiff] attached to the complaint does not amount to a concession [by

14

plaintiff that bank was not at fault]; the plaintiff may tell the court what his adversary has said
without throwing in the towel.”).3
Third, Whirlpool’s contention that plaintiffs’ allegations of airborne pollution are
implausible depends entirely on my accepting Whirlpool’s exhibits for the truth of the matters
asserted therein. Because I may not use the exhibits to decide disputed facts, Whirlpool’s argument
fails. Carrier Corp., supra, 673 F.3d at 441-442; In re Cardinal Health, supra, 426 F. Supp. 2d at
713.
Fourth, plaintiffs’ allegations concerning dumping in the Clyde area are hardly
“nonspecific.” (Doc. 33-1 at 15). The complaint identifies seven dumping grounds, provides a timeframe within which the dumping occurred, and sets forth the results of EPA’s soil and water testing.
These allegations support a plausible inference that Whirlpool breached its duty of care by dumping
toxic waste at those sites, thereby exposing plaintiffs to those materials.
2. Proximate Cause
a. Claims for Wrongful Death and Personal Injury
Whirlpool also contends plaintiffs do not plausibly allege that its dumping and emitting
practices proximately caused plaintiffs’ injuries.
Whirlpool argues: 1) only one plaintiff alleges she visited – and was personally exposed to
– the toxic waste at Whirlpool Park; 2) the levels of benzaldehyde documented in the Vanilla Report
are far below current EPA RSLs for residential soil; 3) plaintiffs’ own exhibits contradict their

3

In questioning the plausibility of plaintiffs’ allegations that benzaldehyde is hazardous to
human health, Whirlpool again relies, impermissibly, on government reports neither referred nor
attached to the complaint. Whether, in fact, benzaldehyde is a known or suspected carcinogen is an
issue for summary judgment, not a motion to dismiss.
15

allegations that benzaldehyde and teflon are known or suspected carcinogens; and 4) the complaint
does not allege Whirlpool emitted VOCs at a level posing a danger to human health.
In response, plaintiffs contend that, by virtue of living in Clyde and the surrounding environs,
they were exposed to Whirlpool’s airborne emissions, which included many known or suspected
carcinogens. They argue the complaint adequately alleges their exposure to those substances caused
they or their children to develop cancer, disabilities, and other diseases.
Plaintiffs also suggest that Whirlpool, in relying exclusively on cases decided at the summary
judgment stage,4 is essentially demanding plaintiffs to provide more detailed factual allegations than
Rule 8 and even Iqbal and Twombley require.
Viewed in the light most favorable to plaintiffs, the complaint alleges a plausible causal
relationship between Whirlpool’s alleged negligence and plaintiffs’ injuries. In brief, plaintiffs have
alleged that Whirlpool polluted the air and soil in and around Clyde over a period of at least fifty
years.
During that time, Whirlpool dumped carcinogens and other hazardous materials at multiple
sites throughout the Clyde area – a practice that “allowed many . . . pollutants . . . to blow through
the wind . . . onto the citizens of Clyde and Eastern Sandusky County.” (Doc. 23 at ¶140). Moreover,
the complaint alleges the soil surrounding the Clyde plant contained PCBs – a class of known
carcinogens – at levels exceeding the relevant EPA safety threshold. Although only one plaintiff
alleges she visited a dump sites – Whirlpool Park, where high levels of PCBs were found as recently

4

Although plaintiffs accurately characterize the cases cited by Whirlpool, it is worth mention
that the decision in Martin v. Behr Dayton Thermal Prod., LLC, 2009 WL 8403651 (S.D. Ohio),
does not, contrary to plaintiffs’ representation, shed any light on the type of allegations sufficient
to allege proximate cause in a toxic tort case.
16

as 2012 – the complaint adequately alleges a mechanism that could expose plaintiffs and others to
Whirlpool’s hazardous waste.
Furthermore, plaintiffs provide non-conclusory allegations that Whirlpool’s airborne
emissions exposed plaintiffs to carcinogens, VOCs, and other toxic substances. Significantly,
plaintiffs allege the Ohio EPA determined Whirlpool emitted “unacceptable levels” of benzene –
a known carcinogen – and other chemicals from the Clyde plant in 2009 and 2010. (Id. at ¶158). In
addition, plaintiffs allege Whirlpool emitted abnormally high levels of VOCs in 2005, after it
switched to a new type of paint.
As a result of their exposure to those substances, plaintiff allege they or their children
developed cancers, disabilities, and other diseases. Regarding the incidence of cancer, multiple
government agencies have confirmed the existence of a cancer cluster in southeast Sandusky
County, and one study identified only a low probability that the cluster could be explained by chance
alone.
Whirlpool’s chief response to these allegations is that plaintiffs have not pled, with sufficient
particularity, that the emitted and dumped materials can cause plaintiffs’ injuries (general causation)
and in fact caused those injuries (specific injuries).
Whirlpool has cited no authority to support its argument that a plaintiff must allege general
and specific causation with the degree of specificity it urges.
For example, Whirlpool contends that Baker v. Chevron U.S.A., Inc., 533 F. App’x 509 (6th
Cir. 2013), and Pinares v. United Techs. Corp., 2011 WL 240522 (S.D. Fla.), stand for the
proposition that a bare allegation that “there are chemicals present in the environment and children

17

are more susceptible to harm from toxins is insufficient to plead general or specific causation.” (Doc.
43 at 12). However, neither case so holds.
First, in Baker the court held plaintiffs could not survive a summary judgment motion
because the only proof of causation they offered did not include individualized exposure data. Baker,
supra, 533 F. App’x at 525. The Sixth Circuit emphasized that “the mere existence of a toxin in the
environment is insufficient to establish causation without proof that the level of exposure could
cause the plaintiff’s symptoms[.]” Id. Thus, the case is about proving, rather than pleading,
proximate cause.
Second, the complaint in Pinares was devoid of any allegations showing “a causal
relationship between any actions by Defendant and Plaintiffs’ claimed damages.” 2011 WL
240522, *2. In contrast, plaintiffs’ complaint here alleges a direct causal link between Whirlpool’s
dumping and emitting practices and the childhood cancer spike, other plaintiffs’ other cancers, and
the personal injury claims.
Here, plaintiffs plausibly allege general and specific causation. They do so by plausibly
alleging Whirlpool either emitted into the air, or released into the ground, numerous known or
suspected carcinogens (benzene, PCBs, VOCs, and benzaldehyde). The plausible inference from
these allegations is that one or more of those chemicals, either singly or in reaction with others, can,
as a general matter, cause cancer. Moreover, they plausibly allege a mechanism – airborne emissions
from the Clyde plant, and airborne transmission from the dump sites – that exposed plaintiffs
individually to those cancer-causing substances. No further detail is required at this stage of the
litigation.

18

Because plaintiffs have alleged a plausible negligence claim, I will deny the motion to
dismiss as to counts one and two.

b. Claim for Property Damages
Plaintiffs’ eleventh claim alleges Whirlpool’s negligent disposal of its manufacturing waste
caused “a significant loss of property values and stigma to the plaintiffs’ property.” (Doc. 23 at
¶271).
Whirlpool argues I should dismiss this claim because: 1) Ohio law does not permit damages
for diminished property values caused by environmental stigma; and 2) plaintiffs plead no facts
showing actual property damage.
Having examined the relevant provisions of Ohio law, I conclude Whirlpool’s
characterization is correct. “[P]ure environmental stigma, defined as when the value of real property
decreases due solely to public perception or fear of contamination from a neighboring property, does
not constitute compensable damages.” Ramirez v. Akzo, 153 Ohio App. 3d 115, 119 (2003).
Damages are available only if there is “actual, physical damage to a plaintiff’s property.” Id.; accord
Younglove Constr., LLC v. PSD Dev., LLC, 782 F. Supp. 2d 457, 462 (N.D. Ohio 2011).
Accordingly, even if plaintiffs had adequately pled that fear of contamination caused a loss
in their property values, plaintiffs could not recover damages for such lost property values.
Furthermore, I agree that plaintiffs provided nothing but conclusions to support their
property-damages claim. Nowhere does the complaint specify the type of damage to plaintiffs’
varied properties or the extent of such damages. Nor do plaintiffs explain, except by pointing to the
non-compensable environmental stigma, what caused the alleged drop in property values.

19

Because plaintiffs’ negligence claim for property damages is nothing more than “an
unadorned, the-defendant-unlawfully-harmed-me accusation,” Iqbal, supra, 556 U.S. at 678, I will
dismiss claim eleven with prejudice.
C. Strict Liability and Ultra-Hazardous Activity
In counts three, four, twelve, and thirteen, plaintiffs bring claims for strict liability and ultrahazardous activity. Counts three and four seek damages for wrongful death and personal injuries,
while counts twelve and thirteen seek damages for lost property values.
As relevant here plaintiffs allege: 1) Whirlpool’s “manufacturing process, including the
disposal of VOCs [and] chemicals, were ultra-hazardous activities”; and 2) Whirlpool “dispos[ed]
of chemicals in a dangerous way so as to kill plaintiffs’ children[.]” (Doc. 23 at ¶¶221, 227).
1. Claim for Property Damage
I dismiss the property damage claims because, as noted in the preceding section, Ohio law
does not permit damages for environmental stigma. In addition, plaintiffs provide only conclusory
allegations to support their property-damages claim.
2. Personal Injury Claims
Whirlpool argues I should also dismiss claims three and four because plaintiffs have not
adequately alleged its manufacturing process is abnormally dangerous. It also contends that certain
allegations in the complaint – namely, that Whirlpool’s smoke-stack system lacked regenerative
thermal oxidizers and was too short to ensure airborne pollutants did not fall onto the city of Clyde
– suggest that its chemical-disposal process can be made safer, and is thus not ultra-hazardous.

20

Plaintiffs respond that their allegations are similar to those in Boggs v. Landmark 4, LLC,
2013 WL 944776 (N.D. Ohio), which the court held were sufficient to state an ultra-hazardous
activity claim against a hydraulic-fracturing operator.
To plead a strict liability claim, plaintiffs must allege that Whirlpool “carries on an
abnormally dangerous activity,” and plaintiffs suffered “harm . . . resulting from that activity.”
Restatement (Second) of Torts, § 519 (1977). An activity is abnormally dangerous if it “cannot be
maintained without injury to property, no matter what care is taken.” State ex rel. R.T.G., Inc. v.
State, 98 Ohio St. 3d 1, 13 (2002).
Here, however, plaintiffs allege only that Whirlpool disposes of chemicals in a “dangerous
way,” and that its manufacturing process is “ultra-hazardous.” (Doc. 23 at ¶¶221, 227). Plaintiffs
allege no facts supporting either of those conclusions; the complaint is silent as to why these
activities are ultra-hazardous.
To be sure, the complaint alleges Whirlpool’s manufacturing process generates – and thus
precipitates a need safely to dispose of – hazardous and carcinogenic materials. However, plaintiffs
fail to allege that Whirlpool could not, under any circumstances, dispose of those substances safely.
Indeed, the complaint implies Whirlpool could have made the process safe by taking additional steps
to ensure that no airborne pollutants fell on Clyde.
Moreover, plaintiffs’ reliance on Boggs is misplaced.
In Boggs, the Hon. Donald C. Nugent of this District held that plaintiffs plausibly alleged
hydraulic fracturing, or fracking, was an ultra-hazardous activity. Boggs, supra, 2013 WL 944776,
*2. The court emphasized that fracking “requires the injection of hazardous chemicals and materials
into the ground near water sources” – thus supporting an inference that, absent even the utmost care

21

and attention, fracking would cause property damage. Id. Judge Nugent also noted in Boggs that
fracking was a novel technique that was far less common than transporting hazardous chemicals by
rail, which courts do not treat as an ultra-hazardous activity.
Because the complaint here lacks allegations comparable to those in Boggs, that case
provides no basis for allowing plaintiffs to proceed with their claims for strict liability and ultrahazardous activity. Accordingly, I will dismiss claims three and four with prejudice.
D. Trespass
In their fifth and fourteenth claims, plaintiffs allege a trespass; in count five they seek
damages for wrongful death and personal injury, and in count fourteen, property damages.5
Plaintiffs allege that Whirlpool’s “manufacturing process, including the disposal of
chemicals, constituted a trespass on plaintiffs’ property and to those similarly situated to plaintiffs.”
(Doc. 23 at ¶233). Plaintiffs also allege that “[b]arrels of liquid Teflon were recently found on the
Weiker property in the Green Creek bed.” (Id. at 152).6
Under Ohio law, the elements of a trespass claim: 1) an unauthorized, intentional act; and
2) a physical entry or intrusion on another’s land. Lally v. BP Prods. N. Am., Inc., 615 F. Supp. 2d
654, 659-660 (N.D. Ohio 2009).
“Traditionally, an intrusion on property by airborne particulates was actionable under a
nuisance claim but did not constitute a trespass.” Williams v. Oeder, 103 Ohio App. 3d 333, 338
(1995). However, many courts, including courts in Ohio, now recognize that “an invasion of

5

I dismiss claim fourteen, to the extent it seeks damages for environmental stigma, because,
as noted supra, such damages are non-compensable under Ohio law. In any event, plaintiffs’ other
allegations of property damage are purely conclusory.
6

Nine of the plaintiffs are members of the Weiker family.
22

airborne particulates may interfere with a complainant’s interest in exclusive possession [of her
property] and may therefore constitute a trespass.” Id.
In a typical trespass case, any tangible invasion of an owner’s property would warrant
damages. Id. at 339. But “such a rule is not appropriate where the incursion is the result of airborne
particulates.” Id. Rather, Ohio courts require plaintiffs alleging a trespass by airborne pollutants
establish they incurred “substantial damage.”
Whirlpool argues I should dismiss the trespass claim because plaintiffs have not alleged: 1)
its dumping and emitting practices contaminated their property; 2) the levels of benzaldehyde found
in six homes in the Clyde area caused substantial damage; and 3) any plaintiff had a possessory
interest in his or her property when the alleged trespass occurred.
Plaintiffs respond I should allow the trespass claim to proceed because: 1) emissions from
the Clyde plant in 2009 and 2010 contained excessive levels of benzene and other toxic substances;
2) there was a spike of VOC emissions resulting from Whirlpool’s difficulties with non-adhering
paint; and 3) the Vanilla Report concluded benzaldehyde blankets Clyde.
1. Property Damage
To state a plausible trespass claim, plaintiffs must allege that Whirlpool’s dumping and/or
emitting practices contaminated or substantially damaged their properties. Cf. Pinares v. United
Tech. Corp., 2011 WL 240522 (S.D. Fla.) (dismissing trespass claim because, while plaintiffs “make
some allegations suggesting that some parts of the Acreage may be contaminated, [those] allegations
fall short of actually alleging contamination” on plaintiffs’ property).
As Whirlpool accurately observes, the complaint contains no such plausible allegations. The
most plaintiffs allege is that, according to the Vanilla Report, benzaldehyde blankets the City of

23

Clyde. But as I noted above, see p. 3, supra, the Report says no such thing; it merely detected the
presence of benzaldehyde in the attics of six homes. The Report is silent, moreover, on the risks to
human health from those amounts of benzaldehyde. Plaintiffs also do not allege the benzaldehyde
in the six home caused substantial damage.
Furthermore, to the extent the trespass claim depends on the toxic substances dumped at the
various dumping sites, the claim would still be implausible, given plaintiffs’ failure to allege those
substances: 1) migrated from the dumping grounds to their properties; and 2) the presence, if any,
of those substances on their property resulted in substantial damage.
Because the complaint contains no plausible allegations that Whirlpool’s emissions or
dumping practices substantially damaged plaintiffs’ properties, I will dismiss the trespass claims.7
2. Lack of Possessory Interests
“To recover on a claim of trespass, a plaintiff must prove that he or she had actual or
constructive possession of the land at the time the trespass occurred.” Abraham v. BP Exploration
& Oil, Inc., 149 Ohio App. 3d 471, 475 (2002).
Whirlpool’s motion to dismiss noted “[p]laintiffs never allege facts showing that they
possessed their properties at the time of the alleged trespass,” (Doc. 33-1 at 24). Plaintiffs fail to
respond to this argument. Furthermore, my review of the complaint establishes that no plaintiff

7

In a conclusory statement unaccompanied by a citation to the complaint, plaintiffs argue
they have adequately pled a continuing trespass, which occurs “when the defendant’s tortious
activity is ongoing, perpetually creating fresh violations of the plaintiff’s property rights.” Weir v.
East Ohio Gas Co., 2003-Ohio-1229, ¶18 (Ohio App.). However, as will be discussed in more detail
below, there are no allegations in the complaint that Whirlpool continues to engage in tortious
dumping and polluting practices.
24

alleges his or her possession of the properties at the time of the trespasses. This, too, provides a basis
to dismiss the trespass claim. Abraham, supra, 149 Ohio App. 3d at 475.8

E. Continuing Nuisance
In their sixth and fifteenth claims for relief, plaintiffs allege “Whirlpool’s manufacturing
process, including the disposal of chemicals, constituted a continuing nuisance on plaintiffs’
property[.]” (Doc. 23 at ¶239).9
A nuisance “is defined as the wrongful invasion of a legal right,” such as the right to use and
enjoy one’s property. Kramer v. Angel’s Path, LLC, 174 Ohio App. 3d 359, 366 (2007).
Under Ohio law, nuisances are either public or private. Id. A public nuisance is an
unreasonable interference with a right common to the general public. A private nuisance, in contrast,
is a “nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Id. at
367.
A nuisance may be continuing or permanent. A continuing nuisance “arises when the
wrongdoer’s tortious conduct is ongoing, perpetually generating new violations.” Id. at 367.
“Conversely, a permanent nuisance occurs when the wrongdoer’s tortious act has been completed,
but the plaintiff continues to experience injury in the absence of any further activity.” Id.

8

Plaintiffs allege they discovered a barrel of Teflon on the Weiker property. Although there
are nine Weikers, residing on multiple, unidentified plaintiffs, the complaint does not identify the
property on which the teflon was allegedly found. Accordingly, besides the reasons already given
for dismissing the trespass claim, this allegation is too vague to state a plausible claim.
9

I dismiss claim sixteen, which alleges a continuing nuisance that caused property damages,
for the reasons given above with respect to plaintiffs’ negligence, strict liability, ultra-hazardous
activity, and trespass claims.
25

Finally, Ohio law further classifies nuisances as either “absolute” or “qualified.” An absolute
nuisance is “based on either intentional conduct or an abnormally dangerous condition that cannot
be maintained without injury or property.” State ex rel. R.T.G., supra, 98 Ohio St. 3d at 13. A
qualified nuisance is a lawful act “so negligently or carelessly done as to create a potential and
unreasonable risk of harm, which in due course results in injury to another.” Kramer v. Angel’s Path,
LLC, 174 Ohio App. 3d 359, 368 (Ohio App. 2007).
Whirlpool argues the complaint fails to allege a plausible continuing-nuisance claim. It
contends: 1) plaintiffs’ allegations concern only Whirlpool’s past dumping and emitting practices,
rather than ongoing tortious activity; and 2) plaintiffs fail to allege their damages are “related to the
use of” their land, as required to state a nuisance claim. Banford v. Aldrich Chem. Co., Inc., 126
Ohio St. 3d 210, 216 (2010).
Plaintiffs’ opposition papers do not address Whirlpool’s grounds for dismissing the nuisance
claim. Instead, relying on a federal court’s interpretation of Ohio law that the Ohio Supreme Court
later rejected, plaintiffs argue that “when a complaint contains a simple allegation that a defendant
leaked pollution into the air and water, and that has harmed the plaintiff and his/her land, the
plaintiff has properly pled a cause of action for nuisance[.]” (Doc. 40 at 29) (citing Nieman v. NLO,
Inc., 108 F.3d 1546 (6th Cir. 1997).
Having considered plaintiffs’ claim in light of Ohio’s nuisance law, I find that plaintiffs have
not plausible alleged a continuing nuisance for at least two reasons.
1. Ongoing Tortious Conduct
First, a continuing nuisance claim cannot go forward without allegations that a defendant is
engaged in ongoing tortious activity.

26

Plaintiffs’ complaint is devoid of any such allegations. Instead, the complaint focuses on
dumping practices that Whirlpool ceased before plaintiffs filed their complaint. For example, the
allegations about Whirlpool’s emissions of combusted paint involve practices occurring from 2005
to 2008. (Doc. 23 at ¶¶52-55). The complaint does not allege Whirlpool’s current emissions
practices constitute negligence, trespass, or the like.
Finally, plaintiffs do not allege Whirlpool continues to dump toxic sludge at the various
dump sites discussed in the complaint. Finally, plaintiffs allege Whirlpool sold Whirlpool Park – the
site of high PCB levels – meaning that Whirlpool no longer controls that property.
Plaintiffs’ opposition depends entirely on the Sixth Circuit’s decision in Nieman, supra. In
that case, the Sixth Circuit concluded that, under Ohio law, a plaintiff could support a continuingtrespass claim with proof of ongoing injury (rather than proof of ongoing tortious conduct). Id. at
1557-1558. Relying on Nieman, plaintiffs appear to suggest their continuing nuisance claim is
adequate, given the continuing injuries that Whirlpool’s conduct caused them.
The Ohio Supreme Court repudiated Nieman in Sexton v. Mason, 117 Ohio St. 3d 275, 283
(2008), calling Nieman “an inaccurate characterization of Ohio law.” Accordingly, even accepting
plaintiffs’ allegations that they continue to experience ongoing injuries, that is insufficient to state
a continuing nuisance claim.
2. Damages Related to the Use of Property
Second, plaintiffs have not plausibly alleged the damages they experienced – i.e., the
wrongful deaths of their decedents and their various personal injuries – are “related to the use of the
property.” Banford, supra, 126 Ohio St. 3d at 216.

27

Plaintiffs’ allegations that Whirlpool’s manufacturing process “killed their children” are
purely conclusory. Furthermore, plaintiffs nowhere allege how those injuries are related to their use
of their property. As far as the complaint shows, these injuries flow from the plaintiffs’ common
exposure to Whirlpool’s dumping and emissions practices, rather than from plaintiffs’ use of their
property.
For both of these reasons, I dismiss plaintiffs’ continuing nuisance claim with prejudice
F. Reckless Conduct
In counts seven and eight, plaintiffs allege Whirlpool’s conduct in disposing of hazardous
waste and emitting certain pollutants was reckless, and that Whirlpool’s recklessness
proximately caused plaintiffs’ injuries.
Ohio law does not recognize a stand-alone cause of action for recklessness. “Willful, wanton,
and reckless conduct is technically not a separate cause of action, but a level of intent which negates
certain defenses which might be available in an ordinary negligence action.” Cincinnati Ins. Co. v.
Oancea, 2004 WL 1810347, *3 (Ohio App.); see also Griggy v. Cuyahoga Falls, 2006-Ohio-252,
¶8 (Ohio App.) (same).
Because there is no cause of action for recklessness under Ohio law, I will dismiss claims
seven and eight with prejudice. Bradley v. City of Cleveland, 2013 WL 775106, *3 (N.D. Ohio).
G. Fraud
In counts nine and ten, plaintiffs assert fraud claims against Whirlpool. They allege
Whirlpool falsely: 1) represented that it did not know of PCBs and other chemicals in the soil at
Whirlpool Park; and 2) denied using benzaldehyde in its core manufacturing process. (Doc. 23 at
¶¶149, 255, 264).

28

Plaintiffs also invoke the fraud-by-omission theory by alleging Whirlpool emitted “pollution
into the air that was not revealed to the Ohio EPA and others,” in violation of its duty to disclose that
information. (Id. at ¶255).
Whirlpool responds that the fraud claims are deficient for four reasons: 1) the complaint does
not identify the speaker of the statement; 2) plaintiffs do not specify when or where the statements
were made; 3) there is no basis for inferring Whirlpool knew the statements were false, or made the
statements with intent to mislead plaintiffs; and 4) plaintiffs’ allegations of justifiable reliance are
too conclusory.
As to the fraud-by-omission claim, Whirlpool argues plaintiffs have not pled facts showing
Whirlpool had a duty to disclose information about the allegedly excessive emission of pollutants.
Plaintiffs respond that they have pled their fraud claims with the requisite particularity. They
argue: 1) the Whirlpool corporation itself is the speaker; 2) the false statements were made in late
2012 and early 2013; and 3) the complaint alleges plausible, particularized reliance.
To state a fraud claim, plaintiffs must allege: 1) a representation or, if a duty to disclose
exists, concealment of a fact; 2) material to the transaction at hand; 3) made falsely, with knowledge
of its falsity, or with such utter disregard and recklessness as to whether it is true or false that
knowledge may be inferred; 4) with the intent to mislead another into relying on the representation;
5) justifiable reliance on the representation or concealment, and 6) a resulting injury proximately
caused by the reliance. Burr v. Bd. of Cnty. Comm'rs of Stark Cnty., 23 Ohio St.3d 69, 73, 491
N.E.2d 1101 (1986).
Plaintiffs must plead fraud with particularity. Fed. R. Civ. P. 9(b). Rule 9 requires plaintiffs
“(1) to specify the allegedly fraudulent statements; (2) to identify the speaker; (3) to plead when and

29

where the statements were made; and (4) to explain what made the statements fraudulent.” Republic
Bank & Trust Co. v. Bear Stearnes, 683 F.3d 239, 247 (6th Cir. 2012).

1. Fraudulent Misrepresentations
a. The Speaker
As Whirlpool accurately observes, the complaint does not identify the speaker of the two
misrepresentations.
In their opposition papers, plaintiffs counter that the Whirlpool corporation itself was the
speaker. Plaintiffs rely on the group-published doctrine, which provides in securities-fraud cases that
“officers and directors of the corporation are held liable for false statements found in group
published documents.” In re SmarTalk Teleservices, Inc. Sec. Litig., 124 F. Supp. 2d 527, 545 (S.D.
Ohio 2000).
As the Sixth Circuit has explained, this doctrine “is premised on the assumption that in cases
of corporate fraud where the false or misleading information is conveyed in prospectuses,
registration statements, annual reports, press releases, or other group-published information, it is
reasonable to presume that these are the collective actions of the officers.” City of Monroe
Employees Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 689 (6th Cir. 2005) (emphasis added).10
Here, I am not persuaded that plaintiffs’ reliance on the group published doctrine saves their
claim under Rule 9(b). This is not a securities fraud case, and there is no need to decide (as in
securities fraud cases) whether a corporate executive may be liable for a fraudulent statement by the

10

The court in Bridgestone declined to comment on the validity of the doctrine in the Sixth

Circuit.
30

corporation. Given the gap between securities fraud cases and the case here, it is quite doubtful that
the group published doctrine is relevant.
In any event, courts applying the group published doctrine generally limit its applicability
to written statements. Bridgestone, supra, 399 F.3d at 689. When one corporate executive’s oral
statement is the basis of a fraud claim, moreover, there can be “no inference that an oral statement
of one officer represents the collective action of others[.]” In re SmarTalk, supra, 124 F. Supp. 2d
at 545.
Because the complaint contains no plausible, particularized allegation that Whirlpool’s
misrepresentations were made in writing, the group published doctrine – even if generally applicable
outside of securities-fraud cases – is inapplicable here. Thus, plaintiffs’ fraud claim does not survive
Rule 9(b).
b. Time and Place of Misrepresentations
Furthermore, the complaint does not allege with particularity when or where Whirlpool made
the false statements. Republic Bank & Trust Co., supra, 683 F.3d at 247.
In the complaint itself, plaintiffs provide no information as to when Whirlpool represented
that: 1) it did not know of the pollution at Whirlpool park; and 2) benzaldehyde is not part of its core
manufacturing process.
Citing ¶264 of the complaint, plaintiffs assert they pled “Whirlpool made the statements after
the PCBs were found on its property and Plaintiffs disclosed the discovery of Benzaldehyde.” (Doc.
40 at 33). However, the complaint contains no such allegation, and it is hornbook law that “a
complaint cannot be amended by briefs in opposition to a motion to dismiss.” Dana Ltd. v. Aon
Consulting, Inc., --- F. Supp. 2d ----, 2013 WL 6154397, *9 n.2 (N.D. Ohio).

31

In any event, the Ohio EPA issued its report identifying PCBs at Whirlpool Park on
September 28, 2012, and the Vanilla Report, which documents benzaldehyde in some houses in
Clyde, relies on data compiled in early March, 2013. Plaintiffs then filed their second amended
complaint on August 2, 2013. Thus, there is a timespan of between five and eleven months in which
the statements could have been made.
In the absence of greater particularity of when and where Whirlpool made the alleged
misrepresentations, plaintiffs’ claim is insufficient under Rule 9(b). U.S. ex rel. Mariar v. BWXT Y12, LLC, 525 F.3d 439, 447 (6th Cir. 2008) (affirming dismissal of claim under False Claims Act
because, inter alia, plaintiff “has not provided dates on which the purportedly false certifications
were submitted, nor has she alleged who submitted [such] certifications”).
c. Reliance
To plead reasonable reliance, plaintiffs must allege facts showing “the representation does
not appear unreasonable on its face and if, under the circumstances, there is no apparent reason to
doubt the veracity of the statement.” Crown Prop. Dev., Inc. v. Omega Oil Co., 113
Ohio App. 3d 647, 657 (1996).
In response to defendant’s motion, plaintiffs argue they adequately alleged justifiable
reliance on Whirlpool’s misrepresentations. According to plaintiffs, “the dumping of toxic chemicals
in a park where people frequent and children play is material to the decision [sic] of those people
to use the park. Had Plaintiffs had that knowledge they would not have used the park.” (Doc. 40 at
32).

32

This argument is unpersuasive for at least two reasons. First, the complaint does not contain
those allegations, and raising new factual allegations in opposition to a motion to dismiss is
improper. Dana, supra, --- F. Supp. 2d ----, 2013 WL 6154397, *9 n.2.
More to the point, even if plaintiffs’ argument had a factual basis in the complaint, such
allegations would be insufficient, as a matter of law, to show reliance. As already noted, Whirlpool
did not make the misrepresentations on which plaintiffs allegedly relied until sometime after
September 28, 2012 – when Whirlpool denied knowing of PCB contamination at Whirlpool park),
and after March 4, 2013 (when the Vanilla Report data was assembled).
But plaintiffs allegedly contracted their various illnesses, and some plaintiffs’ decedents
died, well before either of the allegedly fraudulent misrepresentations could have been made.
Likewise, Whirlpool sold the land formerly known as Whirlpool Park before the false statements
were made.
Accordingly, as a matter of law, plaintiffs could not have relied on Whirlpool’s statements
in 2012 and 2013. Because plaintiffs have not pled reliance with plausibility or particularity, I must
dismiss the fraud claims.
2. Fraud by Omission
Plaintiffs’ fraud by omission claim fares no better. They allege that Whirlpool emitted
pollutants in greater quantities than those reported to the Ohio EPA and others.
Where, as here, a plaintiff alleges fraud by concealment or omission, the plaintiff “must also
allege an underlying duty to speak for the nondisclosure to be actionable.” Randleman v. Fid. Nat’l
Title Ins. Co., 465 F. Supp. 2d 812, 822 (N.D. Ohio 2006). Indeed, even in cases involving the
release of hazardous chemicals, “failure to warn of potential contamination or exposure to dangerous

33

chemicals, without more, is not actionable as fraudulent concealment.” Boggs, supra, 2012 WL
3485288, *6.
In considering whether a complaint adequately alleges a duty to disclose, I examine
allegations regarding:
1) the relationship or situation giving rise to the duty to speak; 2) the event or events
triggering the duty to speak and/or the general time period when the relationship
arose and fraudulent conduct occurred; 3) the general content of the information
withheld and its materiality; 4) the identity of those breaching the duty to disclose;
5) what the defendant gained by withholding information; 6) why plaintiff's reliance
on the omission was both reasonable and detrimental; and 7) damages proximately
flowing from the reliance.
Randleman, supra, 465 F. Supp. 2d at 822.
To support the fraud-by-omission claim, plaintiffs allege only that Whirlpool “owed duties
to [plaintiffs] to operate its manufacturing process, including the disposal of chemicals, in such a
manner that it would not cause injury to plaintiffs[.]” (Doc. 23 at ¶254).
However, plaintiffs do not allege Whirlpool had a duty to disclose information about its
polluting levels or the contamination at Whirlpool park. Nor do the allegations in the complaint
support such a duty. In addition, plaintiffs do not allege what information Whirlpool concealed from
them, and they do not allege how reliance on Whirlpool’s supposed silence proximately caused their
injuries.11
For these reasons, I will dismiss plaintiffs’ fraud-by-omission claim.
H. Loss of Consortium

11

Plaintiffs’ failure to allege when and how Whirlpool’s concealment took place only
exacerbates the problems with the complaint’s already threabare allegations.
34

In count sixteen, plaintiffs bring a claim for loss of consortium. They argue that, as a result
of Whirlpool’s conduct, “the spouses and children of many of the Cancer Survivors and those
similarly situated have lost the normal marital and filial consortium.” (Doc. 23 at ¶285).
Under Ohio law, loss of consortium is a “separate and distinct cause of action[.]” Bowen v.
Kil-Kare, Inc., 63 Ohio St. 3d 84, 92 (1992). However, the claim is a derivative one, “dependent
upon the defendants having committed a legally cognizable tort upon the spouse [or child] who
suffers bodily injury.” Id. at 93.
As stated above, plaintiffs have pled plausible negligence claims against Whirlpool for its
emitting and dumping practices. For that reason, plaintiffs may also pursue a loss-of-consortium
claim for Whirlpool’s negligence.
However, because I am dismissing the remainder of plaintiffs’ claims, they may not purse
a loss-of-consortium claim for any of those claims.
I. Punitive Damages
In their seventeenth claim, plaintiffs allege that, because Whirlpool “demonstrate[d] a
conscious disregard for the rights and safety of plaintiffs and the rest of the public,” Whirlpool must
pay punitive damages. (Doc. 23 at ¶286).
Ohio does not recognize a stand-alone cause of action for punitive damage. Moskovitz v. Mt.
Sinai Med. Ctr., 69 Ohio St. 3d 331, 650 (1994) (“no civil action may be maintained simply for
punitive damages”). Rather, “a plaintiff must be awarded some measure of compensatory damages
to receive punitive damages.” Niskanen v. Giant Eagle, Inc., 122 Ohio St. 3d 486, 489 (2009).
Given this precedent, I dismiss claim seventeen with prejudice. Doing so does not preclude
plaintiffs from recovering punitive damages should they prove their negligence claims and introduce

35

evidence warranting punitive damages. O.R.C. § 2315(C) (award of punitive damages requires
evidence of defendant’s “malice or aggravated or egregious fraud”).
J. Class Action
Plaintiffs wish to pursue their property-damage claims in a class action. They ask me to
certify a class of all similarly-situated “residents of Sandusky County who have lost their property
values because of the tortious conduct by Whirlpool described above.” (Doc. 23 at ¶287).
However, I have already determined that plaintiffs’ property-damage claims – i.e., their
claims for negligence, trespass, continuing nuisance, and strict liability/ultra-hazardous activity –
are legally deficient. Accordingly, because no plaintiff has stated a plausible property-damage claim,
the plaintiffs cannot pursue such claims on a class-wide basis. The request for class certifications
is therefore denied.
K. Request for Leave to Amend
Plaintiffs also request that, if I grant the motion to dismiss in any respect, I should allow
them to amend the relevant sections of their complaint. Whirlpool opposes the request, noting, inter
alia, this is plaintiffs’ second amended complaint, and a conclusory request for leave to amend is
inappropriate.
A party seeking leave to amend must file a motion stating its grounds for amending the
complaint with particularity. Evans v. Pearson Enter., 434 F.3d 839, 853 (6th Cir. 2006). A “bare
request [for leave] in an opposition to a motion to dismiss – without any indication of the particular
grounds on which amendment is sought” does not constitute such a motion. La. Sch. Employees’ Ret.
Sys. v. Ernst & Young, LLP, 622 F.3d 471, 486 (6th Cir. 2010).

36

I decline to predetermine, in the absence of a proper motion and proposed complaint,
whether leave to amend should be given. That decision must await the filing, if any, of an
appropriate motion and proposed amended complaint.

Conclusion
For the reasons set forth above, it is
ORDERED THAT:
1.

Plaintiffs’ motion to strike (Doc. 42) be, and the same hereby is denied;

2.

Defendant’s motion to dismiss (Doc. 33) be, and the same hereby is denied with
regard to counts 1 and 2 and plaintiffs’ ability to seek recovery for loss of consortium
with respect to counts 1 and 2; and

3.

Defendant’s motion to dismiss be, and the same hereby is otherwise granted as stated
herein.

So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

37