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Jones v. Chemetron Corp.

Citation: 30 ELR 20613
No. No. 99-3500, 212 F.3d 199/(3d Cir., 05/09/2000)

The court affirms a bankruptcy court decision holding that the toxic tort claims brought by neighborhood plaintiffs against a bankrupt manufacturing facility had accrued prior to the bankruptcy bar and that the plaintiffs failed to demonstrate excusable neglect, but the court reverses the decision with respect to one of the plaintiffs who was born two years after the facility's bankruptcy reorganization plan was confirmed. The court first holds that the bankruptcy court committed no abuse in its discretion in holding that the plaintiffs failed to sustain their burden of proving excusable neglect. The prejudice to the "fresh start" to which the facility was entitled as a result of the Chapter 11 reorganization, the delay of four years after the bar date and two years after the confirmation date before the plaintiffs brought their claim, and their failure to specifically investigate the cause of their illnesses, even though the danger from the facility's dump generally was known in the community, combine to defeat the plaintiffs' request that they be permitted to file late claims.

The court next holds that with regard to 20 of the 21 plaintiffs, the bankruptcy court's finding that these plaintiffs failed to diligently investigate the cause of their injuries is not clearly erroneous. The plaintiffs failed to prove that their claims arose after the confirmation of the facility's bankruptcy reorganization plan. The evidence demonstrates that only seven of the plaintiffs visited a doctor, but it does not indicate when these plaintiffs first made attempts to see physicians or what other efforts they made to determine the cause of their injuries in a timely manner. Thus, the court affirms the bankruptcy court's holding that these plaintiffs' claims were discharged by the confirmation order.

The court then holds, however, that the potential claim of an unborn child not represented in bankruptcy reorganization proceedings is not discharged by a confirmation order. The law does not impose a duty on a parent to take action to protect a potential claim of a child not yet conceived or born, nor is a bankruptcy court obligated sua sponte to appoint a representative to deal with future interests if no request is made. The court, therefore, next holds that the claims brought by one of the plaintiffs who was born two years after the facility's bankruptcy reorganization plan was confirmed were not discharged by the confirmation order. The unborn plaintiff had no notice of or participation in the reorganization plan, and no effort was made during the course of the bankruptcy proceeding to have a representative appointed to receive notice for and represent the interest of future claimants. Therefore, whatever claim that plaintiff may now have was not subject to the bankruptcy court's bar date order.

Counsel for Appellants
Deborah J. Papushak
Armstrong, Mitchell, Damiani & Zaccagnini
1725 The Midland Bldg.
101 Prospect Ave. W., Cleveland OH 44115
(216) 566-0064

Counsel for Appellee
Micah D. Green
Squire, Sanders & Dempsey
4900 Key Tower
127 Public Sq., Cleveland OH 44114
(216) 479-8500

Before Greenberg and Roth, JJ.