Brown v. Whirlpool Corp.

996 F.Supp.2d 623

Wendy BROWN, et al., Plaintiffs

v.WHIRLPOOL CORPORATION, Defendant.

Case No. 3:13CV1092.

United States District Court,

N.D. Ohio,

Western Division.

Filed Feb. 10, 2014.

Alan W. Mortensen, Dustin Lance, Lance L. Milne, Dewsnup King & Olsen, Salt Lake City, UT, Charles E. Boyk, Michael A. Bruno, Law Office of Charles E. Boyk, Toledo, OH, for Plaintiffs.

Karen A. Crawford, Nelson, Mullins, Riley & Scarborough, Columbia, SC, Robert H. Brunson, Stephen G. Morrison, Nelson, Mullins, Riley & Scarborough, Charleston, SC, Michael Timothy Williams, Andrew C. Efaw, Joel S. Neckers, Wheeler Trigg O'Donnell, Denver, CO, Michael L. Hardy, Thompson Hine, Cleveland, OH, for Defendants.

ORDER

JAMES G. CARR, Senior District Judge.

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 single-dip 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, 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.).

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).

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).

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:

Dumping

Groundwater

Location

Operations

Soil Samples

Samples

Golembiowski Dump

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

Since 1969, received wastewater sludge from the Clyde Plant

N/A

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

N/A

Benzo(a) anthracene: 0.19 mg/kg

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

Thallium: 0.78 mg/kg

Benzo(a) pyrene: 0.015 mg/kg

Benzo(a) pyrene: 0.015 mg/kg Shaw Road Dump

Rural/residential area south of Clyde

Used as a dump for several years

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

N/A

McGrath Dump

Rural/residential area 2.5 miles north of Clyde

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

Levels of arsenic and iron above respective RSLs

N/A

SVOCs, including benzo(a)anthracene and benzo(a)-pyrene present above respective RSLs

Iron, lead, antimony, and chromium found “in unacceptable levels”

Plaintiffs allege that the Whirlpool...