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Tuesday, September 19, 2006

Ind. Decisions - General Motors granted summary judgment in PCB suit for damages and medical monitoring costs [Corrected]

Ed Feigenbaum of Indiana Daily Insight has this item today:

In Allgood v. General Motors Corp., a case in U.S. District Court for the Southern District of Indiana, plaintiffs -- owners and residents of 20 parcels of land located near GM’s Bedford casting plant -- "allege that over the course of several decades, the GM Bedford plant released polychlorinated biphenyls (“PCBs”) that have contaminated their land.PCB suit against General Motors Plaintiffs seek damages for harm to their property and for future expenses of medical monitoring.

Plaintiffs contend that regardless of whether the low PCB levels pose a meaningful risk to health or the use of their property, they are entitled to the costs of a clean-up of their property to background levels, so that PCB 126 is present at no more than 4 parts per trillion (4 nanograms/kilogram) in the soil.

Plaintiffs estimate this clean-up would cost $78 million, which is approximately 20 times the total fair market value of all plaintiffs’ properties."

Judge David Hamilton rules that the "plaintiffs are not entitled to these remediation damages, and GM is entitled to summary judgment on those claims for damages."

Oddly, I could not find that ruling - perhaps it will be made available later today. However, I did find this 19-page denial of a motion for medical monitoring costs, dated 9/12/06. [Correction - Mike Limrick writes to note that this ruling is from 9/12/2005! (Although still interesting.) See also update below] This ruling ends with an interesting discussion of what the Indiana Supreme Court might do on the issue of medical moitoring costs. Here are a few quotes. First from p. 6:
Plaintiffs rely on Gray v. Westinghouse Electric Corp., 624 N.E.2d 49 (Ind. App. 1993), another case involving PCB contamination.
Then, starting on p. 15:
In terms of pronouncements from the Indiana courts, Gray provides the clearest available guidance, and it supports plaintiffs. If medical monitoring were not an available remedy under these circumstances, after all, the Gray court could have affirmed the trial court to the extent it had dismissed that request for relief. Judge McKinney’s earlier prediction in Baker did not have the benefit of Gray. General Motors has reported that Gray was discussed in the briefs presented in the 2002 case of Hunt, but Judge McKinney’s short entry did not address the case and therefore offers little additional guidance on this question.

General Motors points out that Gray leaves unanswered questions as to the exact standards a plaintiff would need to meet to win medical monitoring damages as part of a tort recovery. Nevertheless, the decision left the door open to such claims. This court need not try to map or predict the exact boundaries of such claims for relief at this stage of this case. If plaintiffs are able to prove the elements of a recognized tort such as nuisance, then the court will need to craft jury instructions to provide more specific guidance as to available remedies. For now, it is enough to say that the limited evidence from Gray supports a provisional prediction that the Indiana courts are likely to recognize a claim for medical monitoring damages as part of the remedy for a nuisance claim even if there is no evidence of a present physical injury.

Plaintiffs have suggested that the court should consider certifying a question of law to the Indiana Supreme Court concerning the availability of medical monitoring damages. There may come a time in this case when that step should be taken, either by this court or perhaps the Seventh Circuit. If the issue is presented to the state court in that manner, however, it would probably make most sense to do so only when it is crystal clear that the question of law will in fact be decisive, and to give the state court a full factual record. At the present time, for example, it is easy to imagine the prospect of a series of certified questions at preliminary stages of the case. The state court is unlikely to be receptive to such an approach. Instead, the case will develop in this trial court, and questions of law can be decided once the facts have been developed and found. Cf. Konradi v. United States, 919 F.2d 1207, 1213 (7th Cir. 1990) (“The more nebulous or unsettled the legal standard, the more difficult it should be to exclude contested facts from consideration on the ground that they are immaterial.”).

Accordingly, defendant General Motors’ motion to dismiss plaintiffs’ prayers for the costs of medical monitoring and for summary judgment on the same issue is hereby denied.

[Update] Thanks to Mike Limrick of McTurnan & Turner, here is yesterday's 85-page summary judgment order.

Posted by Marcia Oddi on September 19, 2006 07:13 AM
Posted to Environment | Ind Fed D.Ct. Decisions