Anderson v. Teck Metals, Ltd.

BARBARA ANDERSON, MICHAEL BUFFAN, GAIL LEADEN, TRAVIS MAGERS,RHETT WEILEP, and LEIGH WILLIAM on behalf of themselves and all others similarly situated, Plaintiffs, v. TECK METALS, LTD., a Canadian corporation, Defendant.

No. CV-13-420-LRS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

January 5, 2015

ORDER RE MOTION TO DISMISS

BEFORE THE COURT is Defendant's Motion To Dismiss Amended Class Action Complaint (ECF No. 37). Oral argument was heard on December 17, 2014.

I. 12(b)(6) STANDARD

A Fed. R. Civ. P. 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In reviewing a 12(b)(6) motion, the court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from such allegations. Mendocino Environmental Center v. Mendocino County,14 F.3d 457, 460 (9th Cir. 1994); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The complaint must be construed in the light most favorable to the plaintiff. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The sole issue raised by a 12(b)(6) motion is whether the facts pleaded, if established, would support a claim for relief; therefore, no matter how improbable those facts alleged are, they must be accepted as true for purposes of the motion. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827 (1989). The court need not, however, accept as true conclusory allegations or legal characterizations, nor need it accept unreasonable inferences or unwarranted deductions of fact. In re Stac Electronics Securities Litigation, 89 F.3d 1399, 1403 (9^th Cir. 1996). "Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact) . . . ." Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). The factual allegations must allege a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1951 (2009).

II. STATUTE OF LIMITATIONS/DISCOVERY RULE

Defendant Teck Metals, Ltd. ("Teck") appears to concede, at least for the purposes of this motion, that a three year statue of limitations applies to all of Plaintiffs' claims (strict liability, nuisance and negligence) because they are based on personal injury. RCW 4.16.080(2). Teck contends "[i]t is apparent from the face of the [First Amended Class Action Complaint (ECF No. 28)] that all of Plaintiffs' claims have long since accrued and expired." More specifically, Teck contends all of the claims accrued before December 19, 2010, which is three years from December 20, 2013, the date on which Plaintiffs filed their original ClassAction Complaint (ECF No. 1).

A statute of limitations defense, "if apparent from the face of the complaint," may properly be raised in a motion to dismiss. Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9^th Cir. 1980). A dismissal motion, however, should be granted "only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Id., quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9^th Cir. 1980). "Generally, the applicability of equitable tolling depends on matters outside the pleadings, so it is rarely appropriate to grant a Rule 12(b)(6) motion to dismiss . . . if equitable tolling is at issue." Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9^th Cir. 2006).

The "discovery rule" is a form of tolling. Under the discovery rule, the statute of limitations does not begin to run until a plaintiff discovers or reasonably could have discovered all the essential elements of the cause of action. Allyn v. Boe, 87 Wn.App. 722, 943 P.2d 364, 372 (1997). The discovery rule does not require knowledge of the existence of a legal cause of action itself, but merely knowledge of the facts necessary to establish elements of the claim. Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 814, 818 P.2d 1362 (1991). In Putz v. Golden, 2010 WL 5071270 (W.D. Wash. 2010) at *13, the court found the plaintiffs' allegations were sufficient to withstand a motion to dismiss based on the statute of limitations, noting that "[f]urther discovery may reveal that the exceptions of equitable tolling or the discovery rule should not apply, but the court expresses no opinion regarding the proper outcome at this stage of the litigation."

While the factual allegations in the Amended Complaint here do not point to a specific date of "discovery' for any of the named Plaintiffs, this is not critical so long as the allegations are sufficient to establish a potential defense to the statuteof limitations. Plaintiffs are not required to allege, as maintained by Teck, "what previously unknown facts came to each individual's attention, when the facts were discovered, and how these facts supplied knowledge of elements of their claims that were previously unknown."

"A plaintiff is not required to negate an affirmative defense, such as the statute of limitations, in his complaint." Clark v. City of Braidwood, 318 F.3d 764, 767 (7^th Cir. 2003). The statute of limitations "is rarely a good reason to dismiss under Rule 12(b)(6)," Reiser v. Residential Funding Corp., 380 F.3d 1027, 1030 (7^th Cir. 2004), because "the question is only whether there is any set of facts that if proven would establish a defense to the statute of limitations." Clark, 318 F.3d at 768 (quoting Early v. Bankers Life and Casualty Co., 959 F.2d 75, 80 (7^thCir. 1992)). A Rule 12(b)(6) challenge "which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff's claim is timebarred," except for the "relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint." Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4^th Cir. 2007). The facts necessary to determine the applicability of the discovery rule must clearly appear on the face of the complaint.

It is not apparent from the face of the First Class Action Amended Complaint that all of Plaintiffs' claims have accrued and expired. Therefore, resolution of whether the "discovery rule" applies to each claim should be based on evidence presented at summary judgment proceedings after discovery is completed or, if necessary, at trial. A liberal reading of the allegations in the Amended Complaint, and particularly those at Paragraphs 40-44, reasonably suggests it was not until after 2010 that individuals residing in the Upper Columbia River Region (UCRR), or who once resided there, knew or had reasonto know that emissions from Teck's smelter could be responsible for their specific health problems and that the same was susceptible of proof so that they had a legal right to maintain an action against Teck.

II. CAUSATION

Teck contends the Amended Complaint fails to allege any facts to establish causation which is an essential element of all of the Plaintiffs' claims. According to Teck, "absent . . . from the Amended Complaint are essential factual links in the causal chain between releases from the [Trail] Smelter and Plaintiffs' alleged diseases."

Teck asserts that Plaintiffs' allegations regarding general causation are insufficient because "[w]hile Plaintiffs have arguably alleged that certain chemicals can cause certain diseases¹, they say nothing as to whether those chemicals can cause diseases at the (as yet undisclosed) level they claim they were exposed to as a result of living in the UCRR." Teck does not cite any authority for the proposition that a specific dose-response relationship must be alleged in order to plausibly allege general causation (whether exposure to a substance for which defendant is responsible is capable of causing a particular injury or condition in the general population). Indeed, as Plaintiffs note, Teck does not cite anyauthority that such must be alleged in order to plausibly allege specific causation (whether exposure to an agent was responsible for a given individual's disease).

Even when it comes to proving specific causation, as opposed to merely pleading it, "it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community." Henricksen v. ConocoPhillips Co., 605 F.Supp.2d 1142, 1157 (E.D. Wash. 2009). "While precise or exact information concerning dosage or the dose-response relationship is not always required, the boundaries of allowable expert testimony are not so wide as to permit an expert to testify as to specific causation without having any measurements of a plaintiff's exposure to the allegedly harmful substance." Id., citing Hardyman v. Norfolk & Western Ry. Co., 243 F.3d 255, 264 (6^th Cir. 2001). Again, however, it is necessary to offer measurement of a plaintiff's exposure at the proof stage (summary judgment or trial), not at the pleading stage.

Teck asserts that "[b]ecause Plaintiffs plead no specific facts about their own exposure to hazardous substances, they fail to provide a plausible basis . . . to conclude their injuries are fairly traceable to Teck." According to Teck, Plaintiffs fail to plead "what specific metals or chemicals each was exposed to personally, the means by which each was exposed, or in what quantities and the periods of time during which each was exposed." This level of specificity is not required in order to establish "plausibility" regarding specific causation. What Plaintiffs have alleged in their Amended Complaint is sufficient to state a plausible claim for specific causation.

Plaintiffs allege actual exposure to Teck emissions via the...