Holiday v. Atlantic Richfield Company

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION CHANELL HOLIDAY, et al., ) Plaintiffs, ) ) CAUSE NO.: 2:16-CV-525-JVB-JPK v. ) ) ATLANTIC RICHFIELD COMPANY, et al., ) Defendants. ) OPINION AND ORDER This matter is before the Court on Plaintiffs’ Motion for Leave to File First Amended Class Action Complaint with Individual Claims [DE 226]. On August 23, 2021, presiding District Judge Joseph S. Van Bokkelen granted Defendants’ dispositive motions and dismissed the complaint in its entirety, but permitted Plaintiffs to file a motion to amend the complaint. Oral argument was heard on April 28, 2022. For the reasons discussed below, the motion to amend is granted for relief different than requested, and Plaintiffs will be permitted to pursue some of their proposed claims.

I. FACTUAL BACKGROUND The proposed amended complaint names six defendants: E.I. Dupont de Nemours and Company (“DuPont”); the Chemours Company (“Chemours”); Hammond Group, Inc.; Hammond Lead Products, LLC; Halstab, LLC; and Halox, LLC (collectively, the “Hammond Defendants”).

The general allegations are similar to those in the prior complaint. Defendants allegedly owned or purchased lead refineries and other manufacturing facilities in East Chicago, Indiana. The 251 plaintiffs were all residents of the nearby West Calumet Housing Complex (the “Complex”) or students at the nearby Carrie Gosch Elementary School. Plaintiffs allege that, at various times between 1910 and 1985, the companies introduced contaminants (including lead, arsenic, and other substances) into the air, soil, and/or groundwater. This caused Plaintiffs to suffer an increased risk of a variety of illnesses, as well as severe emotional distress. Some have already developed illnesses allegedly caused by the contaminants.

Defendants failed to warn Plaintiffs about the contamination. Plaintiffs were unaware of the contamination and had no reason to know about it until July 25, 2016, when East Chicago Mayor Anthony Copeland sent a letter to the Complex’s residents, informing them that the ground within the Complex was highly contaminated with lead and arsenic.

In their prior complaint [DE 4], Plaintiffs brought claims of strict liability, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. In dismissing that complaint, Judge Van Bokkelen determined as follows: • Based on Plaintiffs’ allegations, they did not learn about the danger posed by the contamination until July 25, 2016, and therefore the lawsuit would not be dismissed for failure to file within the applicable limitations period; • With regard to the negligence claims, a property owner who processes hazardous materials on its land owes a duty not to contaminate neighboring property; • Although Plaintiffs had alleged they were exposed to contaminants, they had not sufficiently alleged injury, as was required to sustain negligence and strict liability claims; • Plaintiffs had not sufficiently alleged that Defendants acted with the intent to harm Plaintiffs emotionally, as required for a claim of intentional infliction of emotional distress. [DE 220]. Judge Van Bokkelen permitted Plaintiffs to file this motion to amend the complaint.

Plaintiffs now seek to bring class action allegations. They propose a “medical monitoring class” of plaintiffs who resided at the Complex or attended the Carrie Gosch Elementary School, and a “bodily injury class” of plaintiffs with current illnesses caused by the contaminants. They also bring individual claims of negligence, negligent infliction of emotional distress, and a separate cause of action for medical monitoring. [DE 220-1].

II. ANALYSIS When a party seeks leave to amend a complaint, the “court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Seventh Circuit encourages granting one chance to amend after the dismissal of a complaint, to ensure that cases are resolved on the merits rather than technicalities of pleading: “[I]t is unlikely that the court will be able to determine conclusively on the face of a defective pleading whether plaintiff actually can state a claim.” Runnion ex rel.

Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510, 520 (7th Cir. 2015) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)).

Leave to amend may be denied “where there is undue delay, bad faith, dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice . . . or futility of the amendment.” Villa v. City of Chicago, 924 F.2d 629, 632 (7th Cir. 1991). “Futile repleadings include restating the same facts using different language, reasserting claims previously determined, and the inability to survive a motion to dismiss.”

Naperville Smart Meter Awareness v. City of Naperville, 114 F. Supp. 3d 606, 610 (N.D. Ill. 2015) (citing Garcia v. City of Chicago, Ill., 24 F.3d 966, 970 (7th Cir. 1994)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 685 (7th Cir. 2014). The Court must therefore consider whether the facts alleged are sufficient to state a claim under Indiana law. “Where state law provides the rule of decision, the federal courts must predict how the highest court of the state would decide the case if presented with the case today.”

Klunk v. Cnty. of St. Joseph, 170 F.3d 772, 777 (7th Cir. 1999). Decisions of the Indiana Court of Appeals provide a “strong indication of how [the Indiana] Supreme Court would decide a similar question, unless there is a persuasive reason to believe otherwise.” Gen. Accident Ins. Co. of Am. v. Gonzales, 86 F.3d 673, 675 (7th Cir. 1996).

Nonetheless, “a court should deny leave to amend only if it is certain that amendment would be futile or otherwise unwarranted.” Zimmerman v. Bornick, 25 F.4th 491, 494 (7th Cir. 2022). In summary, the Court will attempt to discern whether any or all of Plaintiffs’ claims would survive a motion to dismiss. But unless the Court is “certain” of dismissal, the proposed amendment will not be denied as futile. See also Barry Aviation Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004) (“Unless it is certain from the face of the complaint that any amendment would be futile . . . [the] court should grant leave to amend after granting a motion to dismiss.”).

A. Prejudice/Undue Delay/Bad Faith Several defendants object to the proposed amendment on the grounds of prejudice or undue delay. Although the passage of time can support denial of a motion to amend, “[d]elay must be coupled with some other reason. Typically [that is] . . . prejudice to the non-moving party.”

Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007) (quoting Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 793 (7th Cir. 2004)). Courts consider factors such as the number of previous amendments, the reason for the delay, how long the plaintiff knew about any newly pled facts, and the procedural posture of the case. Bennett v. Crane, No. 1:16-CV-00423-TLS-SLC, 2019 WL 1785533, at *2 (N.D. Ind. Apr. 24, 2019).

Turning first to the timeline: This case has been pending since November 2016, but the Court does not believe Plaintiffs are intentionally delaying the litigation. Since the case was filed in state court, there has been a removal [DE 1], a contested motion to remand [DE 39], and an agreed stay of roughly eight months while a related case was heard on appeal [DE 134, 144], followed by the previous round of dispositive motions, which were resolved in August 2021 [DE 220]. The Court granted Plaintiffs until October 15, 2021, to seek leave to amend the complaint, and this motion was timely filed. This would be their first amendment to the complaint.

Some defendants argue that the facts of the case have not changed, so Plaintiffs should have pled any “new” details in their previous complaint, or when the motions to dismiss apprised them of the inadequacies. While that would have sped things up, “a formal motion for leave to amend was not necessary at the Rule 12(b)(6) stage, and [Plaintiffs were] entitled to wait and see if any pleading problems the court might find could be corrected.” Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th Cir. 2010). Consistent with Seventh Circuit precedent favoring the resolution of cases on the merits, Judge Van Bokkelen explicitly directed that Plaintiffs should be allowed to ask for another chance to amend the complaint. Having reviewed the record, the Court does not believe that Plaintiffs were sandbagging1, or that the proposed amendment reflects a lack of diligence warranting denial of the motion to amend. Cf. McCoy, 760 F.3d at 687 (denying leave to amend where “the unexplained delay looks more like procedural gamesmanship than legitimate ignorance or oversight”).

B. Class Action Allegations Defendants argue that Plaintiffs’ class action allegations cannot satisfy the requirements of Federal Rule of Civil Procedure 23 and should be denied as futile. Attempts to evaluate class

20, 2016) (“It would be an exceptional case that warranted striking class allegations before discovery had even begun.”). “[A] court may abuse its discretion by not allowing for appropriate discovery before deciding whether to certify a class.” Damasco v. Clearwire Corp., 662 F.3d 891, 897 (7th Cir. 2011) (overruled on other grounds by Chapman v. First Index, Inc., 796 F.3d 783 (7th Cir. 2015)). However, a court can strike class allegations from pleadings “where a complaint is so facially lacking that no amount of discovery or time could provide support for class status for the claims pleaded.” Jones v. BRG Sports, Inc., No. 18 C 7250, 2019 WL 3554374, at *3 (N.D. Ill. Aug. 1, 2019); see also Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 563 (7th Cir. 2011) (the court “need not delay a ruling on [class] certification if it thinks that additional discovery would not be useful”).

In this case, the Court declines to address the arguments regarding Rule 23. For the reasons described in this opinion, Plaintiffs’ amended complaint will be different from what they are proposing. They will not be permitted to proceed on a separate cause of action for medical monitoring, and only those plaintiffs with present physical injuries will be permitted to proceed with negligence claims. Any analysis of the class allegations should be based on the revised complaint. The undersigned takes no position on whether these arguments would be properly considered at the pleading stage.

C. Negligence Plaintiffs again attempt to bring negligence claims based on Defendants’ failure to protect from contamination the land where Plaintiffs lived or attended school. “Prevailing on a negligence claim requires fulfillment of three elements: 1) duty owed to plaintiff by the defendant; 2) breach of duty by allowing conduct to fall below the applicable standard of care; and 3) compensable injury proximately caused by defendant’s breach of duty.” Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017). Judge Van Bokkelen rejected arguments by various defendants2 that Plaintiffs had not properly alleged duty, breach, and causation, but found that Plaintiffs had not adequately alleged injury. [DE 220 at 11-13].

Plaintiffs’ negligence claims depend on whether their revised allegations state a cognizable injury. Plaintiffs allege that each of the 251 named plaintiffs “has experienced and/or suffered an increased risk” of 34 different physical injuries. [DE 226-1, ¶¶ 11-261]. Of the 251, 181 allege no present physical injury. [Id. ¶¶ 15-35, 40-48, 53-56, 62-71, 77-105, 110-11, 117-19, 124-156, 161- 67, 173-82, 197-220, 229-47, 252-61]. The remaining 70 allege some form of present physical injury linked to the contaminants. [E.g., id. ¶ 11: “Dena Jackson suffers from fatigue, irritability, stomach aches, and depression.”]. The Court first considers the plaintiffs who have not alleged a present physical injury.

1. Plaintiffs with no present physical injury Judge Van Bokkelen found that Plaintiffs had “alleged exposure to environmental contaminants, but . . . not alleged any resulting injury. ‘[T]he threat of future harm, not yet realized, is not enough’ to satisfy the damages element of a negligence action.” (emphasis in original)

These cases are not exactly on point because they are guided by Indiana’s products liability statute of repose. However, the Indiana Supreme Court approvingly cited cases in other jurisdictions holding that mere physiological changes, or subclinical injury, were not compensable in tort law.

See AlliedSignal, 785 N.E.2d at 1075 n. 8 (citing, e.g., Simmons v. Pacor, Inc., 543 Pa. 664, (1996); Bernier v. Raymark Indus., Inc., 516 A.2d 534, 542 (Me. 1986)); Ott v. AlliedSignal, Inc., 827 N.E.2d 1144, 1155-56 (Ind. Ct. App. 2005) (discussing the cited cases). This is a strong indicator of the Indiana Supreme Court’s view of the requirement of present physical injury in a tort case.

See Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 638-39 (7th Cir. 2007) (citing AlliedSignal for the premise that exposure “do[es] not give rise to a legally cognizable injury,” to predict how the Indiana Supreme Court would decide damages for a negligence claim); Morris v. Arcelormittal USA, Inc., No. 2:09-CV-108-RLM-PRC, 2010 WL 11680298, at *3 (N.D. Ind. Aug. 12, 2010)

Although not binding here, the Court is further persuaded by the reasoning in cases from the supreme courts of Illinois, Michigan, and Kentucky, reaching similar conclusions based on general principles of tort law.4 Plaintiffs essentially argue that a risk of injury is itself a kind of injury.5 The Court understands the reasoning behind that argument, but it is contradicted by the case law. Plaintiffs

In Henry v. Dow Chemical Co., 701 N.W.2d 684 (Mich. 2005), the court considered whether a class of plaintiffs, with no present physical injury, could sustain a negligence claim based on their exposure to dioxin. The plaintiffs expressly did not seek “compensation for physical injury or for the enhanced risk of future physical injury” but sought a medical monitoring program as damages. Id. at 689 n. 4. The court held that the plaintiffs needed a present physical injury to proceed, and the additional expense that the plaintiffs would incur from medical monitoring could not itself sustain a negligence claim. The court explained that while medical monitoring could be damages in a properly-pled negligence claim, it was not an injury. Id. at 689-691 (“Because plaintiffs have not alleged a present physical injury, but rather, “bare” damages, the medical expenses plaintiffs claim to have suffered (and will suffer in the future) are not compensable.”) (citing Cooley on Torts (4th ed., § 32); Prosser & Keeton, Torts (5th ed., § 30)).

In Wood v. Wyeth-Ayerst Laboratories, Div. of Am. Home Prod., 82 S.W.3d 849 (Ky. 2002); the court held that exposure “to an agent that had the potential to result in serious future medical consequences, but which had not produced actual physical harm at the time of the suit,” could not sustain a negligence claim. Id. at 854-55 (“‘The words ‘physical harm’ are used to denote physical impairment of the human body, or of tangible property’ . . . [the plaintiff’s] body has not yet been impaired by her ingestion” of the contaminant) (quoting Restatement (Second) of Torts, § 7, comment (e) (1965)).

Plaintiffs have fleshed out these allegations, by describing the potential injuries in more detail, but they have not resolved the problem Judge Van Bokkelen identified, nor pointed to any new authority that compels a different result. As to the negligence claims of the plaintiffs not suffering a present physical injury, the Court finds that the proposed amendment is futile, and those claims will not be permitted to proceed.

In so finding, the Court remains mindful of the Seventh Circuit’s direction that leave to amend be liberally granted to cure procedural deficiencies. If it seemed that Plaintiffs had sustained present injuries and had not yet pled them due to an honest belief that it was not necessary, the situation might be different. However, Judge Van Bokkelen’s opinion clearly explained that Plaintiffs needed to allege injury, not just exposure, and granted them ample time to do so. Given how long Plaintiffs have had to gather evidence of injury, it appears that these plaintiffs have not sustained present physical injuries from the contamination, or cannot support such allegations in their complaint. The deficiencies are substantive, not procedural, so there is no cause to allow the plaintiffs who have not alleged a physical injury to re-plead based on the same theory.

2. Plaintiffs with a present physical injury The remaining 70 plaintiffs allege a present physical injury caused by the contamination.

The Hammond Defendants argue that there are no specific allegations linking each plaintiff’s injuries to the contamination, so the allegations are “nothing more than that those Plaintiffs have medical conditions of some kind.” [DE 229 at 5-6]. But at the pleading stage, all that is needed are facts supporting a plausible inference that these plaintiffs developed these illnesses at least in part from the exposure to contaminants. See Rolan v. Atl. Richfield Co., No. 1:16-CV-357, 2017 WL 3191791, at *18 (N.D. Ind. July 26, 2017) (causation issue “requires a more factually intensive inquiry” than appropriate at the motion to dismiss stage).

Plaintiffs allege they were exposed to the contaminants at dangerous levels [see, e.g., DE 226-1 ¶¶ 6, 9, 304, 305, 310, 322]. They list a series of illnesses for which they were at “increased risk” due to the exposure [¶¶ 36-39, 49-52, 57-61, 72-76, 106-109, 112-116, 120-123, 157-160, 168-172, 183-196, 221-228, 248-251 (allegations specific to each of the 70 plaintiffs), and 330 (general allegations)].6 The Court’s review indicates that 67 of the 70 plaintiffs allege they have at least one of these ailments.7 Those plaintiffs have adequately alleged injury, and can be permitted to proceed with negligence claims.

The allegations as to three plaintiffs are insufficient. Plaintiff Daniel Gomez Sr. alleges he suffers from “conditions including chronic bronchitis, and other respiratory problems.” [¶ 58].

Neither bronchitis nor respiratory problems are listed among the illnesses caused by the contaminants. [¶¶ 58, 330]. Perhaps another illness on the list (such as hypertension) could lead to respiratory problems, but a mere allegation of “respiratory problems,” with no other context, is too vague. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level.”). A similar problem exists for Micaela Morales, who alleges that she suffers from “mental health problems” [¶ 120], and Annette Velez, who alleges “respiratory and heart conditions” [¶ 192]. There is no clear link from these general

D. Negligent Infliction of Emotional Distress Plaintiffs also attempt to re-plead their negligent infliction of emotional distress (“NIED”) claim. Judge Van Bokkelen dismissed the claim, finding that because Plaintiffs did not plead an injury sufficient to sustain a negligence claim, they could not bring a separate NIED claim, even if they alleged emotional distress as an injury. In other words, there can be no NIED claim unless accompanied by a properly pled, “ordinary” negligence claim. See [DE 220 at 14-15]; Spangler v. Bechtel, 958 N.E.2d 458, 466 (Ind. 2011) (“We have never permitted . . . an action seeking damages for emotional distress predicated upon a breach of an alleged duty not to inflict emotional injury on another. Such independent, stand-alone actions for negligent infliction of emotional distress are not cognizable in Indiana.”).8 However, the Court believes the Indiana Supreme Court’s recent opinion in Community Health Network, Inc. v. McKenzie, 185 N.E.3d 368 (Ind. April 11, 2022), issued after Judge Van Bokkelen’s opinion on the prior dispositive motions, supports an alternate interpretation.

Considering that new case, and without prejudice to any future determination by Judge Van Bokkelen, the undersigned is not “certain” that the proposed claims would lose a motion to dismiss.

In Community Health, the plaintiffs sued a health care provider after an employee gained unauthorized access to their medical records. The plaintiffs brought claims for vicarious liability

Spangler, 958 N.E.2d at 466.

While it is typically futile to “reassert[] claims previously determined,” City of Naperville, 114 F. Supp. 3d at 610, this case is unusual because the Community Health decision was released so recently. Judge Van Bokkelen was not able to consider the case, and the parties have not briefed or otherwise addressed it. “It is not the Court’s responsibility to research the law and construct the parties’ arguments for them,” Always Towing & Recovery, Inc. v. City of Milwaukee, 2 F.4th 695, 707 (7th Cir. 2021), and the fact that no one has addressed this case cuts against a finding that these claims are certain to lose a motion to dismiss. Therefore, Plaintiffs will be permitted to file an amended complaint that includes an NIED claim based on their allegations of emotional distress.

716 N.E.2d 432, 435, n. 3 (Ind. 1999) (holding that the impact does not have to be directly initiated by the tortfeasor: “It matters little how the physical impact occurs, so long as that impact arises from the plaintiff’s direct involvement in the tortfeasor’s negligent conduct.”); Holloway v. Bob Evans Farms, Inc., 695 N.E.2d 991, 996 (Ind. Ct. App. 1998) (ingestion of a portion of vegetables cooked with a worm was a direct physical impact).

E. Medical Monitoring Plaintiffs seek to plead a separate cause of action for medical monitoring. [DE 226-1, p. 163-164]. As discussed in oral argument, there is no independent cause of action for medical monitoring in Indiana. See Johnson v. Abbott Labs., No. 06C01-0203-PL-89, 2004 WL 3245947, at *6 (Ind. Cir. Ct. Dec. 31, 2004) (“Indiana does not recognize medical monitoring as a cause of action.”); Hunt v. Am. Wood Preservers Inst., No. IP 02-0389-C-M/S, 2002 WL 34447541, at *1 (S.D. Ind. July 31, 2002) (a “medical monitoring claim . . . is not cognizable in the State of Indiana”). In the context of this motion to amend, the Court does not need to determine whether medical monitoring can be an appropriate form of damages for an existing claim.

III. CONCLUSION Plaintiffs will be permitted to file an amended complaint consistent with the findings described herein. In summary: • The 67 plaintiffs who properly alleged present physical injuries [see DE 226-1 ¶¶ 36-39, 49-52, 57, 59-61, 72-76, 106-109, 112-116, 121-123, 157-160, 168-172, 183-191, 193-196, 221-228, 248-251] may pursue a claim of negligence based on their present physical injuries; • The request to amend the negligence claims of Plaintiffs Daniel Gomez Sr. [¶ 58], Micaela Morales [¶ 120], and Annette Velez [¶ 192] is denied without prejudice; • All plaintiffs may pursue a claim for negligent infliction of emotional distress; • No plaintiffs may pursue a separate cause of action for medical monitoring.

The Court GRANTS in part and DENIES in part Plaintiffs’ Motion for Leave to File First Amended Class Action Complaint with Individual Claims [DE 226], as described herein.

Plaintiffs are granted until October 24, 2022 to file an amended complaint consistent with this opinion.

So ORDERED this 23rd day of September, 2022. s/ Joshua P. Kolar MAGISTRATE JUDGE JOSHUA P. KOLAR UNITED STATES DISTRICT COURT