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Anderson v. W.R. Grace & Co.

ELR Citation: 16 ELR 20577
Nos. No. 82-1672-S, 628 F. Supp. 1219/23 ERC 2070/(D. Mass., 01/03/1986, 02/21/1986)

In the toxic tort case concerning the Woburn, Massachusetts, toxic waste site, the court rules that plaintiffs may recover for emotional distress resulting from subclinical immune system damage, but not for distress resulting from illnesses suffered by family members, and that plaintiffs may recover for the risk of future illnesses only if those illnesses are part of the same disease processes as the illnesses that plaintiffs now have. Initially, the court declines to rule on whether the discovery rule tolls the three-years-after-death statute of limitations in the Massachusetts wrongful death statute. Although the Massachusetts Supreme Court has been willing to modify the statutory scheme for wrongful death recovery, this court has no basis for determining how it would resolve the instant controversy and the issue may conveniently be certified for appeal after judgment. Turning to the requirement that death occur within two years of injury, the court rules that where the injury causing death is consumption of contaminated groundwater, the injury continues until the end of the exposure, even though the fatal illness became manifest earlier. The leukemias suffered by the deceased plaintiffs could have been aggravated by continued exposure. This result preserves the claim concerning one who died less than two years after the contaminated wells were closed, but bars the claim concerning another who died more than two years after that date.

The court next rules that subcellular damage to the immune system, though not immediately obvious to the layman, can constitute a physical injury supporting a claim for emotional distress. The requirement that the harm be manifested by objective symptoms does not mean that it must be immediately apparent. The distress must stem from the subclinical damage, however, and not arise out of defendant's conduct or lack of concern. The court also rules that Massachusetts law does not recognize claims for emotional distress resulting from witnessing family members' deaths from leukemia. Plaintiffs do not claim a physical harm from this distress and Massachusetts does not recognize the zone-of-danger rule, except where plaintiff was a close relative of the deceased and suffered contemporaneous physical injury from defendant's tortious conduct. The court rules that this exception applies only where the distress results immediately from a traumatic shock and that negligently induced illnesses do not satisfy this standard.

The court rules that plaintiffs may recover for increased risk of future illnesses, so long as the future harm is part of the same disease process causing current harm. Plaintiffs construe the issue as one of allowable damages, but the court concludes that the question is whether the cause of action for the future injury has accrued. If the future cancer cannot be shown to be more likely than not to follow from existing injuries to individual plaintiffs, then the cause of action will not accrue until the cancer actually manifests itself.

Finally, the court holds that plaintiffs may not seek a cleanup injunction or repayment of plaintiffs' cleanup expenses under a nuisance theory. The pollution in this case is a public nuisance, the court rules, because it affected a public water supply, not plaintiffs' own wells. Plaintiffs have standing to sue because they allege special injuries beyond those suffered by the public; they could recover for loss of rental income, physical injury, and emotional distress. The continued presence of the dump does not contribute to these injuries, however, since alternative water supplies have been made available. The same arguments apply to plaintiffs' abatement costs.

Counsel for Plaintiffs
Jan Richard Schlichtmann
Schlichtmann, Conway & Crowley
171 Milk St., Boston MA 02109
(617) 423-9777

Counsel for Defendants
William J. Cheeseman
Foley, Hoag & Eliot
One Post Office Square, Boston MA 02109
(617) 482-1390

Jerome P. Facher
Hale & Dorr
60 State St., Boston MA 02109
(617) 742-9100