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Abner v. Hercules, Inc.

United States District Court, S.D. Mississippi, Eastern Division

September 25, 2017

DOROTHY ABNER, et al. PLAINTIFFS
v.
HERCULES, INC., et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE.

         For the reasons below, the Court overrules Plaintiffs' objections to the Magistrate Judge's Report and Recommendations, and it adopts the Magistrate Judge's Report and Recommendations in part. Specifically:

• The Report and Recommendations is moot with respect to those Plaintiffs who have settled their claims.
• The Court adopts the Report and Recommendations with respect to those Plaintiffs who either declined to approve the settlement agreement and/or failed to return their counsel's communications. The claims of Plaintiffs Donta Blaylock, Carlos R. Griffin, Wihlemenia Hosey, Elisha Jackson, Linzie Myers, Brenda Lee Pollard, Joseph Saucier, Martinez Saucier, Steve Sumrall, Jay Van-Orsdal, Dorothy Warren, Rita White, Patsy Wright, Marsha Bridges, Cedric Dallas, Lucy Holloway-Smith, Jerry Johnson, Pearlie D. Johnson, Deborah Kendrick, Creola McCarty, Abdul Rasulallah, Lashun Singleton, Tracie Stenson, Paul Sykes, Saretha Whitsett, and Billy Carr[1] are dismissed with prejudice for their failure to comply with the Court's orders.
• The Court also adopts the Report and Recommendations with respect to those Plaintiffs who died while the lawsuit was pending. The claims of Plaintiffs Ollie Bohanna, Dorothy Bridges, Dorothy Chapman, Ann Georgian, Irma Lee Landrum, and Lamar Roberts[2]are dismissed with prejudice for their failure to comply with Court orders. However, the Court will consider reinstatement of these Plaintiffs' claims if they produce to the Court a copy of state court documents demonstrating the issuance of letters testamentary, the administration of an estate, or some substantial progress toward chancery court approval of the settlement within thirty days of the entry of this order.
• The Court adopts the Magistrate Judge's Report and Recommendations as to Plaintiffs' counsel's Motion to Withdraw [104]. The Court adopts the same reasoning with respect to Plaintiffs' counsel's supplemental Motion to Withdraw [140]. As all Plaintiffs' claims are either moot or dismissed, Plaintiffs' counsel's Motions to Withdraw [104, 140] is moot.

         Accordingly, no Plaintiffs' claims remain pending, and this matter is hereby closed.

         A. Background

         The Court has outlined the background of this case on several occasions.[3] To frame recent events within the context of the case as a whole, the Court will do so once again.

         In this mass tort case, approximately 400 Plaintiffs owning 495 different parcels of property alleged that dozens of different contaminants from Defendant's facility migrated onto their properties through surface water, groundwater, soil, and airborne pathways. Plaintiffs asserted state-law claims of negligence, nuisance, and trespass, and they sought a wide variety of damages, including damage to their property values, mental anguish, and punitive damages. See Amended Complaint, Abner v. Hercules, Inc., No. 2:14-CV-63-KS-MTP (S.D.Miss. July 2, 2014), ECF No. 12. On August 19, 2014, Defendant filed a motion for entry of a Lone Pine[4] Case Management Order. Motion for Entry of Lone Pine Case Management Order, Abner v. Hercules, Inc., No. 2:14-CV-63-KS-MTP (S.D.Miss. Aug. 19, 2014), ECF No. 18. Plaintiffs opposed the motion. Plaintiffs' Opposition, Abner v. Hercules, Inc., No. 2:14-CV-63-KS-MTP (S.D.Miss. Sept. 5, 2014), ECF No. 27.

         On November 10, 2014, the Court granted Defendant's motion and entered Case Management Order No. 1. See Abner v. Hercules, Inc., No. 2:14-CV-63-KS-MTP, 2014 U.S. Dist. LEXIS 158892 (S.D.Miss. Nov. 10, 2014). The Court noted that Plaintiffs filed this suit armed with voluminous discovery materials gleaned from a previous case involving similar claims, Blackard v. Hercules, Inc., including deposition transcripts and several decades' worth of documents from Defendant.[5] Plaintiffs already knew every chemical produced or utilized on the site, as well as when they were produced. However, Plaintiffs did not specify the contaminants on their 495 parcels of property or the pathways which carried them from the Hercules site. Plaintiffs essentially relied upon the proximity of the properties to the site[6] and previous reports of contaminant locations.

         As Plaintiffs would eventually be required to present scientific evidence of contaminants on their properties and the pathways by which those contaminants traveled from the Hercules site, [7] the Court concluded that the Lone Pine order would not increase Plaintiffs' cost of litigation. Indeed, by filing the Complaint, Plaintiffs' counsel had certified to the Court that their “factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support.” Fed.R.Civ.P. 11(b)(3). Likewise, “[e]ach Plaintiff should have at least some information regarding the nature of his injuries, the circumstances under which he could have been exposed to harmful substances, and the basis for believing that the named defendants were responsible for his injuries.” Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000).

         Finally, the Court observed that Plaintiffs' map of site-related contaminants found thus far only coincided with a small number of the properties at issue and, therefore, failed to prove or disprove most of Plaintiffs' claims. The Court likewise noted that Plaintiffs' proposed plan to choose a subset of test plaintiffs to move toward trial and resolve common issues was impracticable. Plaintiffs had not provided any plan for geographically dividing their properties; rather, Plaintiffs suggested that they be divided among their relevant pathways. However, the Court observed that several of the properties were so far away from the Hercules site and the other affected properties that they could not reasonably be traced to any alleged pathway. Finally, the Court noted that the parties did not agree on the existence or location of alleged pathways, and that it was unlikely they would agree on the composition of test groups or the information to be disclosed by them.

         In the end, the Court concluded that Defendant's proposed Lone Pine order provided the most effective and efficient procedural tool to advance this litigation. It imposed no undue burden or expense on Plaintiffs, as they would eventually have to provide evidence of contamination anyway. Plaintiffs were also free to use their own proposed test-group method to limit the alleged burden of testing - a procedure suggested by Plaintiffs themselves in briefing.

         Case Management Order No. 1 required Plaintiffs to provide Defendant with an expert affidavit for each property demonstrating that a) the property and the alleged migration pathway had been sampled by a qualified expert; b) the samples had been analyzed by a qualified laboratory; c) lab analysis had detected constituents that had been detected on the Hercules site; and d) lab analysis had confirmed the existence of a migration pathway from the Hercules site to the property, or other cause. Case Management Order No. 1, Abner v. Hercules, Inc., No. 2:14-CV-63-KS-MTP (S.D.Miss. Nov. 10, 2014), ECF No. 36. The Court also required Plaintiffs to identify the sampling method employed, media sampled, and the migration pathway for each property. Defendant was required to “promptly provide Plaintiffs with any ongoing, additional testing/sampling results of the Hercules site or surrounding area, ” regardless of its source. Finally, the Court ordered that the Blackard discovery materials could be used in this case, and that no discovery would be conducted in this case until Plaintiffs complied with the Lone Pine order. The Court advised that Plaintiffs unable to establish the existence of constituents on their property or a migration pathway, or who otherwise did not comply with the order, may be ordered to show cause why their claims should not be dismissed.

         Two weeks later, Plaintiffs filed a Motion to Modify Case Management Order No. 1 (“CMO”). Motion to Modify CMO No. 1, Abner v. Hercules, Inc., No. 2:14-CV-63-KS-MTP (S.D.Miss. Nov. 24, 2014), ECF No. 37. First, Plaintiffs argued that the CMO's requirements of sampling and pathway analysis were neither technically feasible nor required by Mississippi law. Second, Plaintiffs argued that it was impossible to comply with the CMO's requirements because it precluded them from conducting limited, targeted discovery regarding the chemical compound dioxathion, [8] which was not at issue in Blackard. Plaintiffs also argued that, for a variety of reasons, six months was not sufficient time to conduct the required testing.

         On February 5, 2015, the Court granted Plaintiffs' motion in part and denied it in part. Order, Abner v. Hercules, Inc., No. 2:14-CV-63-KS-MTP (S.D.Miss. Feb. 5, 2015), ECF No. 42. First, the Court noted that it had not limited Plaintiffs' theories of causation to migration pathways, but that it addressed the issue in the CMO because Plaintiff had suggested dividing the properties by alleged migration pathways. Plaintiffs were free to confirm the existence of a “migration pathway from the Hercules site to the property, or other cause.” The Court also rejected Plaintiffs' contention that Mississippi law required no scientific evidence of contamination or causation, citing Prescott, 740 So.2d at 310-11, and Anglado, 716 So.2d at 548-49. But it permitted Plaintiffs to access and utilize discovery materials from another pending case filed by their counsel, City of Hattiesburg v. Hercules, Inc., No. 2:13-CV-208-KS-MTP. Finally, the Court denied Plaintiffs' request to extend the CMO deadline because they had provided no reason they could not immediately begin testing for other contaminants allegedly present on their properties, despite the alleged delay in reliable tests for dioxathion.

         Three months later, on May 11, 2015 - the deadline to comply with the Lone Pine order - Plaintiffs filed a motion to confirm their compliance with the order and move forward with the case. Motion to Confirm Compliance with CMO No. 1, Abner v. Hercules, Inc., No. 2:14-CV-63-KS-MTP (S.D.Miss. May 11, 2015), ECF No. 43. Plaintiffs claimed to have collected a) attic dust from fifty of the subject properties, [9] b) soil samples from twenty properties, c) nine samples of sediment from alleged “current and historical drainage pathways” from the Hercules site, d) two surface water samples from “the vicinity of” the Hercules site, e) four water samples from wells drilled “down-gradient of known groundwater contamination around the” Hercules site, f) eleven soil samples from near the wells, g) tree bark and core samples from ten trees on the Hercules site, and h) tree bark and core samples from six trees “in areas off the Hercules site.”[10] Twenty-eight of the attic dust samples contained dioxathion, and thirty-six of them contained toxaphene.[11] Forty-four of fifty attic samples, nineteen of twenty soil samples, eight of nine sediment samples, all four well samples, and both surface water samples contained a contaminant. Finally, dioxathion was detected in three of the trees on the Hercules site, and toxaphene was detected in one of the off-site trees.

         Plaintiffs argued that these testing results demonstrated that they all have colorable claims. They asserted that the contaminated attic dust samples “confirm[] the existence of an air pathway as the predominant means by which pesticides and other site constituents migrated from the Site to the Plaintiffs' properties.” Plaintiffs argued that the presence of dioxathion in the attic dust samples is a “smoking gun” insofar as dioxathion was the active ingredient in an insecticide manufactured exclusively by Hercules in Hattisburg for almost thirty years. Plaintiffs also argued that their testing proved the existence of four distinct pathways from the site: groundwater, surface water drainage, flood plains, and air release. In summary, Plaintiffs argued that all of the testing described above confirmed that contaminants migrated from the Hercules site into surrounding areas, that contaminants spread in all directions via air pathways, and that the contaminants indisputably originated at the Hercules site. Alternatively, they requested additional time to comply with the Lone Pine order.

         The Court granted the motion in part and denied it in part. Order, Abner v. Hercules, Inc., No. 2:14-CV-63-KS-MTP (S.D.Miss. Aug. 14, 2015), ECF No. 47. It granted Plaintiffs until December 1, 2015 - an extension of almost seven months - to comply with the Lone Pine order, but it denied the motion in all other respects.

         Plaintiffs promptly filed a Motion for Reconsideration. Motion to Reconsider, Abner v. Hercules, Inc., No. 2:14-CV-63-KS-MTP (S.D.Miss. Aug. 17, 2015, ECF No. 48. Therein, Plaintiffs represented that they had recently completed a second phase of testing, and that they had “taken steps to eliminate a handful of properties that were inadvertently included in the original complaint.”[12] In the second phase of testing, Plaintiffs collected fifty-five attic dust samples from forty-two Plaintiffs' properties and seven properties owned by the City of Hattiesburg. All the properties tested were within 1.3 to 2.25 miles of the Hercules site. Measurable amounts of toxaphene and dioxathion were found in twenty-nine of the fifty-five samples. Plaintiffs did not test for any other contaminants. Plaintiffs asserted that, when combined with the first phase of testing, over seventy-five percent of the homes sampled had shown traces of contaminants linked to Hercules. Therefore, they argued that it was more likely than not that they would be able to present sufficient evidence to support their remaining claims after a reasonable opportunity for investigation and discovery. In their reply brief, Plaintiffs argued that a subset of the tested properties should proceed into discovery and toward resolution on the merits.

         On November 17, 2015, the Magistrate Judge denied Plaintiffs' Motion for Reconsideration. Order, Abner v. Hercules, Inc., No. 2:14-CV-63-KS-MTP (S.D.Miss. Nov. 17, 2015), ECF No. 60. The Court observed that Plaintiffs had only tested for two of the dozens of contaminants they alleged were on their properties. The Court further observed that hundreds of Plaintiffs' properties remained untested, and that just over half of the subject properties which were tested showed the presence of any contaminant. The Court observed that the Lone Pine order did not impose any requirements on Plaintiff that they would not eventually be required to meet in order to prove their case, and that the cost of testing should not surprise them insofar as they chose to file a mass tort suit concerning almost five hundred different properties. Finally, the Court observed that Plaintiffs' latest motions further complicated the case by introducing an alleged pathway ...


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