In re Pfohl Bros. Landfill Litigation

No. 95-CV-0020A (W.D.N.Y. September 22, 1999)

ELR Digest

The court holds untimely all but two individuals' toxic tort claims against contributors to a landfill. The court first holds that all but two of the personal injury, survival, and wrongful death claims were time barred, because they were filed after both the state statute of limitations for toxic tort cases and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 309 federally required commencement date (FRCD). CERCLA § 309 neither creates a separate federal cause of action based on toxic torts within its terms nor establishes a uniform statute of limitations for such torts; rather it provides a uniform accrual date from which the applicable state period of limitation governing the relevant claim is measured. CERCLA § 309 overrides New York law and makes it consistent with federal law, but it does not displace the one-year limitation on filing claims in toxic tort cases contained in New York law. Therefore, the claims brought in 1996 and 1997 are untimely even with the benefit of CERCLA § 309 because they were filed more than one year after the FRCD of December 19, 1994.

The court next holds that the individuals' claims are untimely because had they exercised due diligence, they would have discovered the cause of their injuries prior to 1992. The court finds that the individuals were obligated, upon discovering that they had cancer, to investigate and determine the cause of such injuries. Based on the abundance of media coverage dedicated to the landfill prior to 1992 and the volume of information available to the public, had the individuals been reasonably diligent in inquiring as to the cause of their cancers, they would have had sufficient information to develop a reasonable suspicion as to the cause of such injuries prior to 1991. Moreover, the court finds that the state of technology, science, and medicine was sufficient to investigate the cause of their cancers prior to 1991.

The court further holds that CERCLA § 309 is constitutional and does not violate either the U.S. Commerce Clause or the Tenth Amendment. Finally, the court holds that the loss of consortium claims that are derivative of the dismissed claims, should also be dismissed. Claims for punitive damages may proceed only as to the timely claims.

[A prior decision in this litigation is published at 29 ELR 20460. A related decision is published at 30 ELR 20150.]

The full text of this decision is available from ELR (25 pp., ELR Order No. L-104).

Counsel for Plaintiffs
Frederick M. Baron
Baron & Budd
3102 Oak Lawn Ave., Ste. 1100, Dallas TX 75219
(214) 521-3605

Counsel for Defendants
Laurie S. Bloom
Nixon, Hargrave, Devans & Doyle
1600 Main Pl. Tower, Buffalo NY 14202
(716) 853-8100

[30 ELR 20150]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]