United States District Court, E.D. Washington
BARBARA ANDERSON, MICHAEL BUFFAN, GAIL LEADEN, TRAVIS MAGERS, RHETT WEILEP, and LEIGH WILLIAM on behalf of themselves and all others similarly situated, Plaintiffs,
TECK METALS, LTD., a Canadian corporation, Defendant.
ORDER RE MOTION TO DISMISS
LONNY R. SUKO, Senior District Judge.
BEFORE THE COURT is Defendant's Motion To Dismiss Amended Class Action Complaint (ECF No. 37). Oral argument was heard on December 17, 2014.
I. 12(b)(6) STANDARD
A Fed.R.Civ.P. 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In reviewing a 12(b)(6) motion, the court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from such allegations. Mendocino Environmental Center v. Mendocino County, 14 F.3d 457, 460 (9th Cir. 1994); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The complaint must be construed in the light most favorable to the plaintiff. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The sole issue raised by a 12(b)(6) motion is whether the facts pleaded, if established, would support a claim for relief; therefore, no matter how improbable those facts alleged are, they must be accepted as true for purposes of the motion. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827 (1989). The court need not, however, accept as true conclusory allegations or legal characterizations, nor need it accept unreasonable inferences or unwarranted deductions of fact. In re Stac Electronics Securities Litigation, 89 F.3d 1399, 1403 (9th Cir. 1996). "Factual allegations must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)...." Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). The factual allegations must allege a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1951 (2009).
II. STATUTE OF LIMITATIONS/DISCOVERY RULE
Defendant Teck Metals, Ltd. ("Teck") appears to concede, at least for the purposes of this motion, that a three year statue of limitations applies to all of Plaintiffs' claims (strict liability, nuisance and negligence) because they are based on personal injury. RCW 4.16.080(2). Teck contends "[i]t is apparent from the face of the [First Amended Class Action Complaint (ECF No. 28)] that all of Plaintiffs' claims have long since accrued and expired." More specifically, Teck contends all of the claims accrued before December 19, 2010, which is three years from December 20, 2013, the date on which Plaintiffs filed their original Class Action Complaint (ECF No. 1).
A statute of limitations defense, "if apparent from the face of the complaint, " may properly be raised in a motion to dismiss. Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir. 1980). A dismissal motion, however, should be granted "only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Id., quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). "Generally, the applicability of equitable tolling depends on matters outside the pleadings, so it is rarely appropriate to grant a Rule 12(b)(6) motion to dismiss... if equitable tolling is at issue." Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006).
The "discovery rule" is a form of tolling. Under the discovery rule, the statute of limitations does not begin to run until a plaintiff discovers or reasonably could have discovered all the essential elements of the cause of action. Allyn v. Boe, 87 Wn.App. 722, 943 P.2d 364, 372 (1997). The discovery rule does not require knowledge of the existence of a legal cause of action itself, but merely knowledge of the facts necessary to establish elements of the claim. Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 814, 818 P.2d 1362 (1991). In Putz v. Golden, 2010 WL 5071270 (W.D. Wash. 2010) at *13, the court found the plaintiffs' allegations were sufficient to withstand a motion to dismiss based on the statute of limitations, noting that "[f]urther discovery may reveal that the exceptions of equitable tolling or the discovery rule should not apply, but the court expresses no opinion regarding the proper outcome at this stage of the litigation."
While the factual allegations in the Amended Complaint here do not point to a specific date of "discovery' for any of the named Plaintiffs, this is not critical so long as the allegations are sufficient to establish a potential defense to the statute of limitations. Plaintiffs are not required to allege, as maintained by Teck, "what previously unknown facts came to each individual's attention, when the facts were discovered, and how these facts supplied knowledge of elements of their claims that were previously unknown."
"A plaintiff is not required to negate an affirmative defense, such as the statute of limitations, in his complaint." Clark v. City of Braidwood, 318 F.3d 764, 767 (7th Cir. 2003). The statute of limitations "is rarely a good reason to dismiss under Rule 12(b)(6), " Reiser v. Residential Funding Corp., 380 F.3d 1027, 1030 (7th Cir. 2004), because "the question is only whether there is any set of facts that if proven would establish a defense to the statute of limitations." Clark, 318 F.3d at 768 (quoting Early v. Bankers Life and Casualty Co., 959 F.2d 75, 80 (7th Cir. 1992)). A Rule 12(b)(6) challenge "which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff's claim is timebarred, " except for the "relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint." Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). The facts necessary to determine the applicability of the discovery rule must clearly appear on the face of the complaint.
It is not apparent from the face of the First Class Action Amended Complaint that all of Plaintiffs' claims have accrued and expired. Therefore, resolution of whether the "discovery rule" applies to each claim should be based on evidence presented at summary judgment proceedings after discovery is completed or, if necessary, at trial. A liberal reading of the allegations in the Amended Complaint, and particularly those at Paragraphs 40-44, reasonably suggests it was not until after 2010 that individuals residing in the Upper Columbia River Region (UCRR), or who once resided there, knew or had reason to know that emissions from Teck's smelter could be responsible for their specific health problems and that the same was susceptible of proof so that they had a legal right to maintain an action against Teck.
Teck contends the Amended Complaint fails to allege any facts to establish causation which is an essential element of all of the Plaintiffs' claims. According to Teck, "absent... from the Amended Complaint are essential factual links in the causal chain between releases from the [Trail] Smelter and Plaintiffs' alleged diseases."
Teck asserts that Plaintiffs' allegations regarding general causation are insufficient because "[w]hile Plaintiffs have arguably alleged that certain chemicals can cause certain diseases, they say nothing as to whether those chemicals can cause diseases at the (as yet undisclosed) level they claim they were exposed to as a result of living in the UCRR." Teck does not cite any authority for the proposition that a specific dose-response relationship must be alleged in order to plausibly allege general causation (whether exposure to a substance for which defendant is responsible is capable of causing a particular injury or condition in the general population). Indeed, as Plaintiffs note, Teck does not cite any authority that such must be alleged in order to plausibly allege specific causation (whether exposure to an agent was responsible for a given individual's disease).
Even when it comes to proving specific causation, as opposed to merely pleading it, "it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community." Henricksen v. ConocoPhillips Co., 605 F.Supp.2d 1142, 1157 (E.D. Wash. 2009). "While precise or exact information concerning dosage or the doseresponse relationship is not always required, the boundaries of allowable expert testimony are not so wide as to permit an expert to testify as to specific causation without having any measurements of a plaintiff's exposure to the allegedly harmful substance." Id., citing Hardyman v. Norfolk & Western Ry. Co., 243 F.3d 255, 264 (6th Cir. 2001). Again, however, it is necessary to offer measurement of a plaintiff's exposure at the proof stage (summary judgment or trial), not at the pleading stage.
Teck asserts that "[b]ecause Plaintiffs plead no specific facts about their own exposure to hazardous substances, they fail to provide a plausible basis... to conclude their injuries are fairly traceable to Teck." According to Teck, Plaintiffs fail to plead "what specific metals or chemicals each was exposed to personally, the means by which each was exposed, or in what quantities and the periods of time during which each was exposed." This level of specificity is not required in order to establish "plausibility" regarding specific causation. What Plaintiffs have alleged in their Amended Complaint is sufficient to state a plausible claim for specific causation.
Plaintiffs allege actual exposure to Teck emissions via the air pathway over significantly long periods of time. Accordingly, while there are no specific allegations in the Amended Complaint about any of the Plaintiffs drinking river water or lake water, swimming in river or lake water, eating fish from the river or lakes, or eating vegetables from gardens they or others had in the UCRR, merely breathing the air in the UCRR for a prolonged period of time was enough according to the Amended Complaint: 1) "Between 1921 and 2005, it is estimated that Teck also emitted 38, 465 tons of zinc, 22, 688 tons of lead, 1, 225 tons of arsenic, 1, 103 tons of cadmium, and 136 tons of mercury into the air" (Paragraph 22; emphasis added); 2) "Multiple studies have identified environmental exposure to mercury as a cause of inflammatory bowel disease. Teck emitted 136 tons of mercury into the air from 1926-2005.... The Washington Department of Ecology found elevated levels of mercury in the Northport area, primarily attributed to airborne emissions by Teck" (Paragraph 51; emphasis added); 3) All four Plaintiffs [Gail Leaden, Travis Magers, Rhett Weilep, and Leigh Williams] lived in the UCRR for significant portions of their lives before being diagnosed with Crohn's or ulcerative colitis" (Paragraph 56); 4) "Given the presence of elevated levels of mercury in the UCRR attributable to the Trail Smelter, the alarmingly large cluster of inflammatory bowel disease in the Northport area, and the absence of some of the most common other risk factors, and given the scientific studies linking inflammatory bowel disease to exposure to the materials emitted by Teck and deposited in the UCRR, the diseases of Plaintiffs Gail Leaden, Travis Magers, Rhett Weilep and Leigh Williams were caused by long-term exposure to Teck's emissions, particularly mercury" (Paragraph 57); 5) "Cadmium is emitted to soil, water, and air by non-ferrous metal mining and refining, manufacture and application of phosphate fertilizers. The highest risk of exposure comes from processes involving heating cadmiumcontaining materials such as smelting and electroplating. The major route of exposure is through inhalation of dust and fumes or incidental ingestion from contaminated hands, food, or cigarettes" (Paragraph 60; emphasis added); 6) "Anywhere from 5-50% of the cadmium inhaled will enter the body through the lungs. Breathing air contaminated with very high levels of cadmium can severely damage the lungs and may cause death. Breathing even lower levels of cadmium over long periods of time (for years) results in a build-up of cadmium in the kidneys" (Paragraph 61; emphasis added); 7) If lead enters the body through inhalation of dust or chemicals that contain lead, it quickly enters other parts of the body through the bloodstream" (Paragraph 63); and 8) Teck emitted 22, 688 tons of lead into the atmosphere between 1921 and 2005.... Teck emitted 1, 103 tons of cadmium into the atmosphere between 1921 and 2005...." (Paragraph 68; emphasis added).
The court agrees with Plaintiffs that their action is on "all fours" with Brown v. Whirlpool Corporation, 996 F.Supp.2d 623 (N.D. Ohio 2014). In that case, Whirlpool contended the plaintiffs did not plausibly allege its dumping and emitting practices proximately caused plaintiffs' injuries. The district court disagreed:
Viewed in the light most favorable to plaintiffs, the complaint alleges a plausible causal relationship between Whirlpool's alleged negligence and plaintiff's injuries. In brief, plaintiffs have alleged that Whirlpool polluted the air and soil in and around Clyde over a period of at least fifty years.
During that time, Whirlpool dumped carcinogens and other hazardous materials at multiple sites throughout the Clyde area - a practice that "allowed many... pollutants... to blow through the wind... onto the citizens of Clyde and Eastern Sandusky County."... Moreover, the complaint alleges the soil surrounding the Clyde plant contained PCBs - a class of known carcinogens - at levels exceeding the relevant EPA safety threshold. Although only one plaintiff alleges she visited a dump sites (sic) - Whirlpool Park, where high levels of PCBs were found as recently as 2012 - the complaint adequately alleges a mechanism that could expose plaintiffs and others to Whirlpool's hazardous waste.
Furthermore, plaintiffs provide non-conclusory allegations that Whirlpool's airborne emissions exposed plaintiffs to carcinogens, VOCs [Volatile Organic Compounds], and other toxic substances. Significantly, plaintiffs allege the Ohio EPA determined Whirlpool emitted "unacceptable levels" of benzene - a known carcinogen - and other chemicals from the Clyde plant in 2009 and 2010.... In addition, plaintiffs allege Whirlpool emitted abnormally high levels of VOCs in 2005, after it switched to a new type of paint.
As a result of their exposure to those substances, plaintiffs allege they or their children developed cancers, disabilities, and other diseases. Regarding the incidence of cancer, multiple government agencies have confirmed the existence of a cancer cluster in southeast Sandusky County, and one study identified only a low probability that the cluster could be explained by chance alone.
Id. at 637-38.
The allegations in Whirlpool bear a close resemblance to the allegations in the Amended Complaint: 1) Plaintiffs allege Teck has polluted the air and the soil and the water in the UCRR for approximately the past 100 years (Paragraphs 17-33); 2) the Environmental Protection Agency (EPA) and others have determined that Teck is the principal source of contamination in the area (Paragraphs 34-39); 3) an informal health survey indicates Northport residents suffer from thyroid or endocrine disorders at six times the rate of the general population and found elevated rates of arthritis, cancer, inflammatory bowel disease, brain aneurisms, and Parkinson's disease; and 4) a subsequent health survey conducted by Dr. Korzenik found 17 ...