Adams v. Atl. Richfield Co.

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DESHEENA ADAMS, et al., Plaintiffs, v. ATLANTIC RICHFIELD COMPANY, et al., Defendants.

No. 2:18-CV-375-PPS-AZ

United States District Court, N.D. Indiana, Hammond Division

July 11, 2024

OPINION AND ORDER

PHILIP P. SIMON, JUDGE UNITED STATES DISTRICT COURT.

This action is one of several related toxic tort lawsuits brought in this district by various groups of East Chicago residents.^[1] The plaintiffs in this case are 54 former residents of the West Calumet Housing Complex, and four individuals who resided nearby in a private, single-family home. Those four individuals who lived adjacent to West Calumet are Minerva Ramirez, D.R.1, C.R., and M.R. (who I'll refer to collectively as “Ramirez,” unless context requires otherwise). Plaintiffs claim various entities negligently exposed them to harmful levels of lead arsenic, and other toxins by introducing these hazardous materials decades ago on land adjacent to West Calumet.

After this matter was transferred to me in late 2022, I ruled on a round of motions to dismiss Plaintiffs' Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [DE 195; DE 224 (SAC); see DE 228 (Hammond Lead MTD); DE 231 (DuPont MTD); DE 236 (Atlantic Richfield MTD).] In a forty-one page Opinion and Order entered September 29, 2023, I summarized the complex procedural history of the case and largely agreed with Atlantic Richfield, DuPont, and Hammond Lead that the Second Amended Complaint failed to state plausible claims for various state-law torts. [DE 251.] Plaintiffs subsequently filed a motion seeking reconsideration of the dismissal with prejudice of various of their claims against these three defendants. [DE 257.] On May 13, 2024, I entered a detailed Opinion and Order denying Plaintiffs' motion for reconsideration, finding their arguments amounted to mere disagreement on application of Indiana case law relevant to their negligence and NIED claims. [DE 294.]

U.S Smelter and Lead Refinery, Inc. (“U.S. Smelter”) the other defendant named in the Second Amended Complaint, opted not to file a motion to dismiss the Second Amended Complaint, but rather an answer denying Plaintiffs' allegations and raising various affirmative defenses. [DE 230.] Following my ruling on the last round of motions to dismiss, U.S. Smelter filed a motion for judgment on the pleadings, seeking dismissal of Plaintiffs' claims for strict liability (Count I), negligence (Count III), and NIED (Count VI), based largely on the same pleading deficiencies addressed in my prior order. [DE 262.] For the reasons that follow, I conclude that Minerva Ramirez, C.R., and Liduvina Espinosa have plausibly stated claims for negligence and negligent infliction of emotional distress against U.S. Smelter; however, the remaining Plaintiffs fail to state plausible NIED claims under Indiana's modified impact rule, and the strict liability claims fail for the same reasons addressed in my prior orders.

Background

In ruling on the pending motion, I assume familiarity with both the operative factual allegations in the Second Amended Complaint and my analysis of Plaintiffs' state law claims sounding in negligence, negligent infliction of emotional distress, nuisance, and strict liability. [DE 224; DE 251.] As detailed in my prior Opinion and Order, this case has an extensive procedural history; I will not repeat my earlier summary of the relevant orders entered by Judge Van Bokkelen and former Magistrate Judge Kolar. [See DE 251 at 2-11.] It's enough to say that when I received the case following Judge Van Bokkelen's ruling on an initial round of motions to dismiss, it was already years in the making. [See DE 157; DE 195.] With each successive round of pleadings, Plaintiffs have tried to adequately allege injuries caused by the defendants' polluting activities to conform to the Court's rulings. This protracted process has proceeded over the better part of six years. Yet Plaintiffs press that it should go on still longer. After I recently denied their motion for reconsideration on the dismissal with prejudice of various of their claims, Plaintiffs responded by filing a motion seeking leave to file a third amended complaint. [See DE 296.] Whether they can meet their burden to do so is a question for another day. What matters for purposes of evaluating U.S. Smelter's motion are the allegations in the operative complaint.

Plaintiffs are 60 East Chicago residents who either previously resided at the West Calumet Housing Complex (a public housing project) or own property near the former site of West Calumet. [DE 224, ¶¶ 26-27.] Evidently, someone made the ill-advised decision to build a large housing project on the site of a former lead refinery. It was no surprise, therefore, that just a couple decades later, the site was designated by the EPA as a Superfund Site. In 2016, the City of East Chicago informed residents of West Calumet that they would have to move out of the housing complex. This mass exodus occurred in 2016 and 2017, and the complex closed for good shortly thereafter. A year later it was demolished. Out of all the Plaintiffs, only the Ramirez plaintiffs, who reside in a single family home located within the Superfund Site, remain.

U.S. Smelter operated a smelter from 1906 to 1985 that produced lead dust and other hazardous substances, causing contamination of the Superfund Site. U.S. Smelter's polluting activities allegedly “produced waste materials such as blast furnace slag and lead-contaminating dust emitted by the blast furnace stack and rooftop vents,” and Plaintiffs claim the company “piled and spread” and “stockpiled” these materials on property adjacent to the Superfund Site. [DE 224, ¶¶ 39-41.] U.S. Smelter's facilities generated airborne emissions of contaminants, including lead and arsenic, from plant stacks into surrounding areas, including land on which Plaintiffs' homes and yards were built years later, and spread over adjoining wetlands, contaminating Plaintiffs' groundwater and yards. Id., ¶ 45.

Various other companies are also alleged to have contributed to pollution on the land in question through industrial operations that took place nearby many decades earlier. From 1910 to 1949, Plaintiffs claim DuPont operated a facility next door that manufactured lead arsenate insecticide, which allegedly “contributed to pollution” of the land. Id., ¶¶ 51-59. Hammond Lead had its manufacturing operations at two locations south of the Superfund Site, which Plaintiffs claim “also contributed to its contamination with hazardous substances,” including lead and arsenic. Id., ¶¶ 67-75. Finally, Plaintiffs claim that from 1938 to 1965, a predecessor of Atlantic Richfield operated a facility manufacturing white lead and zinc oxide on land later designated part of the Superfund Site. Id., ¶¶ 60-66.

The EPA has been involved with the Superfund Site for over two decades. In August 2005, the EPA listed among “parties potentially responsible for the contamination at [the Superfund Site]” DuPont, Hammond Lead, and Atlantic Richfield Company and BP West Coast Products, LLC (originally named defendants who were dismissed from the case), along with unidentified “others.” [DE 224, ¶¶ 86-87.] ¶ 2009, the Superfund Site was placed on the National Priorities List, and the EPA in 2014 filed suit against Atlantic Richfield and DuPont in connection with pollution on the Superfund Site. See id., ¶¶ 84, 90-91. That case was assigned to me, see Cause No. 2:14-CV-312-PPS-PRC, and was resolved with a consent decree, pursuant to which the defendants agreed to pay roughly $26 million to clean up the property.

Relatedly, in September 2017, years after the smelting operation was shut down and U.S. Smelter had filed for bankruptcy, the EPA, U.S. Smelter, and related companies entered an administrative settlement. U.S. Smelter agreed to conduct a remedial investigation of the groundwater at the Superfund Site and the soil in the surrounding area in East Chicago, and another company (Mueller Industries, Inc., a non-party to this lawsuit) agreed to guarantee financial assurance for U.S. Smelter's liability in connection with the Superfund Site. [DE 224, ¶¶ 49-50; see id., ¶ 44.]

The residents of West Calumet claim they were unwittingly exposed to contamination caused, in part, by U.S. Smelter's polluting activities. Although the company knew of the contamination and its dangers, Plaintiffs assert that the named defendants “intentionally” and “actively concealed” the fact and extent of the pollution and the dangers it posed. At the same time, Plaintiffs acknowledge the fact that the government investigated pollution at the Superfund Site for many years, put the Superfund Site on the National Priorities list, and pursued an enforcement action against Atlantic Richfield and DuPont to remediate the pollution dating back to 1910. Despite all this action around the Superfund Site years prior to the closure of West Calumet, Plaintiffs claim they were first notified of the contamination and its dangers in July 2016, when the Mayor of East Chicago notified them about results of the EPA's testing at the Superfund Site.

That November, West Calumet residents sought to intervene in the government's enforcement action, hoping to weigh in on the remediation plan. I denied the motion to intervene noting that the proposed clean-up plan was mailed to all residents within two miles of the Superfund Site and notice of the lodging of the consent decree was filed years earlier, in September 2014. See United States v. Atlantic Richfield Co., 324 F.R.D. 187, 189, 191-92 (N.D. Ind. 2018). Plaintiffs nonetheless allege that they were unaware of their exposure to hazardous levels of contamination caused by Defendants' pollution at the...