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Modern Holdings, LLC v. Corning, Inc.

United States District Court, E.D. Kentucky, Central Division, Lexington

March 29, 2018

MODERN HOLDINGS, LLC, et al., Plaintiff,


          Gregory F. Van Tatenhove United States District Judge

         This environmental mass-tort lawsuit alleges Defendants Corning Inc. and Philips Electronics North America Corp., the successive owners of a glass manufacturing plant located in Danville, Kentucky, intentionally or negligently released toxic chemicals and substances during the sixty years of the plant's operation. [See generally R. 211; R. 110 at 1.] As the named Plaintiffs, Sellers & Sellers Co., Bobbie Lemons, Otis Ford, Charles Ford, Rosetta Ford, Gary Ford, and Modern Holdings, LLC, claim Defendants' release of these chemicals and substances polluted the air, water, and soil within a five-mile radius, resulting in personal injury and property damages to the named plaintiffs, as well as members of their proposed class. [See generally R. 211; R. 110; R. 111 at 1.][1] Today, this Court considers whether Plaintiffs' proposed class action should go forward, considering Plaintiffs' Motion to Certify Class Action [R 251], Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification [R. 268], and Plaintiffs' Reply [R. 290]. After careful consideration and detailed review, and for the reasons that follow, the Plaintiffs' Motion to Certify is DENIED.



         Defendants Corning Inc. and Philips Electronics North America owned and operated the Danville, Kentucky glass manufacturing facility at issue in this case, which Corning built in 1952. [R. 110 at 2; R. 211 at ¶ 29.] Corning operated its glass manufacturing business there until 1983, when Corning sold the facility to Philips. [R. 110 at 2; R. 211 at ¶¶ 29-30.] From 1983 until 2011, Philips manufactured various glass products at the facility. [R. 110 at 2; R. 211 at ¶ 30.] Philips sold the facility back to Corning in 2013. [R. 110 at 2; R. 211 at ¶ 31.]

         Plaintiffs here are individuals and corporations who own land allegedly damaged by Defendants' operations of the facility, and/or who allegedly experience personal injuries flowing from the release of toxic substances by Defendants. They identify many hazardous substances used in the course of the facility's operations including, but are not limited to, asbestos, mercury, antimony, arsenic, beryllium, cadmium, chromium, lead, tin, zinc oxide and other heavy metals, thallium, perchloroethylene (PCE), 1-Trichloroethane (TCA), methylene chloride, PCB compounds, benzene, toluene, vanadium, benzo(b)fluoranthene, benzo(a)pyrene, ethylbenzene, silica, chlorinated fluorocarbons (CFC), 2-Butanone (MEK), trichloroethylene (TCE), and ethanolamine. [R. 211 at ¶¶ 1-5; id. at ¶ 39.] Plaintiffs allege Corning and Philips illegally dumped these hazardous substances in nearby fields, streams, and lands now owned by the named Plaintiffs and members of the proposed class. [See generally R. 211.] Plaintiffs also contend that Defendants improperly maintained their “settling ponds” (filtration systems used to collect chemical run-off) and allowed lead dust and other hazardous substances to accumulate on the roof of the facility and wash into the Clarks Run watershed, a source of drinking water for the region. Id. at ¶¶ 55-56.

         According to Plaintiffs, chemicals in wastewater discharge units, known as “outfalls, ” exceeded applicable statutory limits, and tests recently conducted on the facility's grounds indicated the presence of heavy metals in the soil, air, and building itself. Id. at ¶¶ 57-58. Preliminary tests in the area also indicated elevated concentrations of lead, TCE, dichloroethene (DCE), and arsenic in groundwater and surface water samples, as well as lead and arsenic concentrations significantly above industrially accepted soil levels. Id. at ¶ 218.

         To remedy these alleged wrongs and resulting damages, Plaintiffs seek relief through the following legal theories: nuisance, trespass, negligence, battery, fraudulent concealment, and negligent infliction of emotional stress. [R. 110; R. 211 at ¶ 27.] Medical monitoring was dismissed as a cause of action against Defendants through Defendants' earlier Motion to Dismiss, but it has been preserved as a potential remedy. [R. 110 at 31-32]. Previously, Defendants also moved to strike the proposed class allegations on the ground that they do not comport with the requirements of Fed.R.Civ.P. 23(b) and Article III of the United States Constitution. [R. 44.] That Motion was denied. [R. 111.]

         Plaintiff's Motion to Certify Class Action has been pending since April 3, 2017. [R 251.] During the lengthy briefing period, Defendants also filed a joint Motion to Exclude the Opinion of Albert Westerman. [R. 267.] That Motion was recently denied by this Court. [R. 287.] As such, the opinion of Albert Westerman shall be considered by this Court for purposes of this Order.


         Plaintiffs' Motion proposes that the following class be certified in this case: “all persons who at any time between 1952 and November 27, 2013, resided within the Affected Area or who owned off-Site property within the Affected Area as of November 27, 2013.”[2] [R. 251 at 1.] Likewise, Plaintiffs propose that the following two subclasses be certified in this case: those who owned property within this Affected Area and those who resided within this Affected Area between 1952 and 2013. Id. at 2. The Affected Area is defined as “a parabolic shape extending 4, 000 feet to the North of the on-Site smoke stacks, 12, 000 feet to the East, 4, 000 to the South, and 3, 000 to the West.” Id. at 1.

         In support of their Motion, Plaintiffs have submitted voluminous information and evidence comprised of various affidavits, memoranda, scientific data, maps, and depositions. [See generally R. 252 and documents attached thereto.] Plaintiffs seek certification under any of the provisions of Fed.R.Civ.P. 23(b) that will permit their proposed class to proceed, seeking both an injunction and a variety of forms of other damages, including pecuniary damages for personal injury and financial and property losses, as well as “damages for the diminution in the value of their properties, additional compensatory and punitive damages, and the establishment of a Court supervised medical monitoring program.” [R. 251 at 1; R. 211 at ¶ 28.]

         Defendants oppose the certification of Plaintiffs' proposed class and subclasses, having already unsuccessfully moved to strike the proposed class allegations. [R. 44; R. 110.] In their Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification, Defendants jointly contest not only Plaintiffs' standing under Article III of the United States Constitution, but also argue that Plaintiffs have failed to satisfy any prong of Rule 23(a) or Rule 23(b). [R. 268.]



         This Court has broad discretion in deciding whether to certify a proposed class. Pipefitters Local 636 Ins. Fund v. Blue Cross Blue Shield of Mich., 654 F.3d 618, 629 (6th Cir. 2011); In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). This is so because a “class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only, '” and is subject to strict requirements under Rule 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To warrant certification, class members must not only satisfy Article III standing requirements, but must also “satisfy all four of the Rule 23(a) prerequisites- numerosity, commonality, typicality, and adequate representation-and fall within one of the three types of class actions listed in Rule 23(b).” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012) (citing Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998) (en banc)). “The party seeking class certification has the burden to prove the Rule 23 certification requirements.” Id. (citing In re Am. Med. Sys., Inc., 75 F.3d at 1079). The party opposing certification need not disprove the requirements. See id.

         The requirements for standing outlined by Article III of the United States Constitution apply equally to class action lawsuits. Sutton v. St. Jude Medical S.C., Inc., 419 F.3d 568, 570 (6th Cir. 2005). The “irreducible” constitutional minimum of standing contains three elements: an injury in fact, a causal connection, and likely redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The plaintiff in a suit must have suffered an “injury in fact, ” defined as “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (internal citations omitted). Next, the plaintiff must demonstrate a “causal connection” between this injury and the alleged conduct of the defendant; “the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. (internal citations omitted). Finally, a favorable decision for the plaintiff must likely redress this injury, and relief must be more than merely speculative. Id. at 561.

         Plaintiffs seeking the certification of a class must prove two additional components in order to show they have standing to proceed as a class. The proposed class must be identifiable and unambiguous, and the named representatives must be members of the proposed class. Pilgrim v. Universal Health Card, LLC, No. 5:09-cv-879, 2010 WL 1254849, *1 (N.D. Ohio Mar. 25, 2010), aff'd, 660 F.3d 943 (6th Cir. 2011). In a properly defined class, only members who have standing to file suit in their own right would be included. Chaz Concrete Co., LLC v. Codell, No. 3:03-cv-52-KKC, 2006 WL 2453302, at *6 (E.D. Ky. Aug. 23, 2006). For that reason, the Court may deem a proposed class overly broad if such a class would incorporate members who neither have suffered harm nor are at risk to suffer such harm at the hands of the defendant. Id. (quoting McGee v. East Ohio Gas Co., 200 F.R.D. 382, 388 (S.D. Ohio 2001).

         The Court is not required to inquire into the merits of the case in order to determine whether a person is a member of a class. Bostick v. St. Jude Med., Inc., No. 03-2626 BV, 2004 WL 3313614, *16 (W.D. Tenn. 2004). Rather, “[f]or a class to be sufficiently defined, the court must be able to resolve the question of whether class members are included or excluded from the class by reference to objective criteria.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 538 (6th Cir. 2012) (quoting 5 James W. Moore, et al., Moore's Federal Practice § 23.21[3] (Matthew Bender, 3d ed. 1997)). Plaintiffs, as the party invoking jurisdiction, bear the burden of proof on each requirement for standing. Id.; see also Beattie v. CenturyTel, Inc., 511 F.3d 554, 560 (6th Cir. 2007).

         Plaintiffs argue their proposed class satisfies all of these standing requirements. [R. 251-1 at 26-28.] Plaintiffs maintain their proposed class definition is sufficient because “it includes a particular group (property owners and residents), that were [sic] harmed by a continuous and cumulative course of action by Defendants during a particular time frame (from 1952 to present), in a particular location (the Affected Area), and in a particular way (contamination by lead, arsenic, and TCE).” Id. at 26-27.

         Likewise, Plaintiffs claim their proposed class satisfies the Lujan standing requirements because their expert reports sufficiently satisfy all of the components. Id. at 27. Plaintiffs address neither causation nor redressability in their Motion. Id. Presumably, however, Plaintiffs implicitly rely on the opinion of Maurice Lloyd to show causation and the opinions of Paul Lanthier and Dr. John Kilpatrick to show redressability. See, e.g., id. at 16-18; 18-19; 23-24. Similarly, although not explicitly, it may be inferred that the opinions of Dr. David Changaris, Dr. Haley Godby, and Dr. Albert Westerman are offered in support of the personal injury in fact component, while the opinions of Maurice Lloyd and Vance Mosley have been offered in support of the property-damage injury in fact component. Compare Id. at 24-25, with Id. at 14- 15.

         Defendants counter that the evidence and pleadings of the named Plaintiffs fail to satisfy Article III, arguing the named Plaintiffs have failed to prove the proposed class has standing. [R. 298 at 10-12.] Specifically, Defendants argue the named Plaintiffs have shown neither that every member of the proposed class has suffered a personal injury nor that each property that falls within the Affected Area has been diminished in value by Defendants. Id. at 11. Defendants also contend the proposed class definitions constitute a “fail safe” class. Id. at 12. Defendants are right to raise these issues.[3]

         Because at this state Article III issues in this case are dependent on whether a class is certified, of standing will be resolved as informed by Rule 23. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612-13 (1997). This Court “therefore follow[s] the path” taken by the Supreme Court, “mindful that Rule 23's requirements must be interpreted in keeping with Article III constraints, and with the Rules Enabling Act, which instructs that rules of procedure ‘shall not abridge, enlarge, or modify any substantive right.'” Id. at 613 (quoting 28 U.S.C. § 2072(b)); see also Fed. R. Civ. P. 82.


         A prospective class must meet a total of seven independent requirements. Two of these stem from Article III's standing requirements: “an identifiable class must exist and the definition of the class must be unambiguous, and the named representative must be a member of the class.” Pilgrim v. Universal Health Card, LLC, No. 5:09-cv-879, 2010 WL 1254849, *1 (N.D. Ohio Mar. 25, 2010), aff'd, 660 F.3d 943 (6th Cir. 2011) (citations omitted). The remaining five requirements stem from Rule (a) and (b):

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Finally, “In addition to the prerequisites of Rule 23(a), a party seeking class certification must show that the class action is maintainable under Rule 23(b).”

Id. (citations omitted). There must be a statement of the facts indicating that each requirement of the rule is fulfilled. Pipefitters Local 636 Ins. Fund v. Blue Cross Blue Shield of Mich., 654 F.3d 618, 629 (6th Cir. 2011).

         “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Dukes verified that the district court should not merely presume that the plaintiffs' allegations in the complaint are true for the purposes of class motion without resolving factual and legal issues. See Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 417 (6th Cir. 2012); see also In re Am. Med. Sys. Inc., 75 F.3d 1069, 1081 (6th Cir. 1996) (holding that individual proofs, which “vary from plaintiff to plaintiff, ” do not satisfy Rule 23(a)).

         Rather, this Court must “probe behind the pleadings before coming to rest on the certification question.”[4] Dukes, 564 U.S. at 350 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982)).



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