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Modern Holdings, LLC v. Corning, Inc.

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

April 26, 2019

MODERN HOLDINGS, LLC, et al., Plaintiffs,
v.
CORNING, INC., et al., Defendants.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove United States District Judge.

         This matter is before the Court on the motion to dismiss filed by the Defendants. [R. 316.] The Plaintiffs recently filed a Fifth Amended Complaint, adding numerous new Plaintiffs. [R. 308; R. 311.][1] Defendants seek to dismiss claims brought by two groups of these new Plaintiffs: the Minor Plaintiffs and the Plaintiffs who allege only property damage. [R. 316.] Because these Plaintiffs have failed to state a claim for which relief may be granted, Defendants' Motion to Dismiss is GRANTED.

         I

         A

         This case began nearly six years ago with two Plaintiffs asserting damages for alleged negligent or intentional hazardous substance contamination of the Plaintiffs' properties by the Defendants. [R. 1.] Last March, this Court denied Plaintiffs' request for class certification. [R. 291.] Following that denial, Plaintiffs added nearly ninety additional Plaintiffs to this matter. [R. 308; R. 311.] Defendants now seek to dismiss the claims of seven of those Plaintiffs. [R. 316.] According to the Defendants, three of the newly joined Plaintiffs (E.N., S.N., and M.N.) are minors who assert personal injury claims but allege no present injury. Id. at 1-2. Defendants also argue that four others (Wanda Beasley, Donna Smith, Walter Smith, and Mary Emily Orberson) assert only claims for property damages without alleging a present injury, and therefore fail to state a claim for emotional distress. Id.

         Plaintiffs allege in their complaint the Defendants exposed their community to toxic levels of lead, arsenic, and Trichlorethylene (TCE), suing defendants for nuisance, trespass, negligence, gross negligence, recklessness, negligence per se, battery, fraudulent concealment, and negligent infliction of emotional distress. [R. 308 ¶¶ 3-7.] The Plaintiffs each bring a combination of personal injury and property damage claims. Id. at ¶¶ 10-12.

         Plaintiff E.N. is a seven-year-old who has lived in the allegedly affected neighborhood her entire life and seeks damages for personal injury. Id. at ¶ 59. “While [E.N.] does not yet experience any health problems, as the collected scientific reference attached as Exhibit C demonstrate, significant health problems can result from exposure to excessive amounts of lead, arsenic, and/or TCE, particularly when exposure occurs at a young age.” Id. Plaintiff S.N. is three, has also lived in that neighborhood throughout her life, and also alleges personal injury claims. Id. at ¶ 60. “While [S.N.] does not yet experience any health problems, as the collected scientific reference attached as Exhibit C demonstrate, significant health problems can result from exposure to excessive amounts of lead, arsenic, and/or TCE, particularly when exposure occurs at a young age.” Id. Plaintiff M.N. is four years old, lived in the relevant neighborhood all four years, and brings identical personal injury claims. Id. at ¶ 61. “While [M.N.] does not yet experience any health problems, as the collected scientific reference attached as Exhibit C demonstrate, significant health problems can result from exposure to excessive amounts of lead, arsenic, and/or TCE, particularly when exposure occurs at a young age.” E.N., S.N., and M.N. are siblings. Id. at ¶¶ 59-61.

         Plaintiff Wanda Beasley lives and owns property approximately a mile from the Defendants' facility and asserts claims of property damage due to the alleged contamination. Id. at ¶ 63. According to her, “Plaintiffs' experts have concluded that the contamination generated and dispersed by Defendants has negatively impacted the use and value of properties within the Affected Area.” Id. Ms. Beasley's property is located within this Affected Area. Id. Plaintiffs Donna Smith, Walter Smith, and Mary Emily Orberson also each own property within the Affected Area, and each make substantially the same claim for property damage as Ms. Beasley. Id. at ¶¶ 87, 88, 97. Plaintiffs assert that the actions of the Defendants caused significant diminution in the value of their properties. Id. at ¶ 147.

         Collectively, the Plaintiffs in this matter bring personal injury claims under theories of negligence, gross negligence, recklessness, negligence per se, battery, and fraudulent concealment. Id. at ¶¶ 317-348. They also bring property damage claims under these same theories, plus theories of nuisance and trespass. Id. at ¶¶ 287-348. In the alternative, Plaintiffs who have suffered physical injury due to exposure, or have been exposed but not yet manifested physical injury, “have suffered serious emotional distress proximately resulting from their significantly increased risk of developing future disease, ” and these Plaintiffs assert claims of Negligent Infliction of Emotional Distress. Id. at ¶¶ 349-352. Defendants believe that the claims of personal injury and negligent infliction of emotional distress by E.N., S.N., M.N., Wanda Beasley, Donna Smith, Walter Smith, and Mary Emily Orberson fail to state claims upon which relief may be granted. [R. 316 at 3.]

         B

         A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of a plaintiff's complaint. In reviewing a Rule 12(b)(6) motion, the Court “construe[s] the complaint in the light most favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all inferences in favor of the plaintiff.” DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). The Court, however, “need not accept as true legal conclusions or unwarranted factual inferences.” Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). The Supreme Court explained that in order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). See also Courier v. Alcoa Wheel & Forged Products, 577 F.3d 625, 629 (6th Cir. 2009).

         II

         A

         Plaintiffs admit that E.N., [2] S.N., and M.N. all allege personal injury claims, but “none of these three minor children [have] evidenced an outward manifestation of a physical injury that was readily observable by their mother prior to the filing of the Fifth Amended Complaint.” [R. 321 at 4.] Instead, counsel for these Plaintiffs states that the injuries suffered by the siblings of E.N., S.N., and M.N. indicate that the personal injuries will inevitably manifest, even if injuries are not yet readily apparent. Id. Under Kentucky law, [3] “[r]ecovery is not possible until a cause of ...


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