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McClurg v. Mallinckrodt, Inc.

United States District Court, E.D. Missouri, Eastern Division

July 7, 2017

SCOTT D. MCCLURG, Plaintiffs,
v.
MALLINCKRODT, INC., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         The more than 450 Plaintiffs in these consolidated cases[1] assert “public liability actions” under the Price-Anderson Act (“PAA”), as amended, 42 U.S.C. § 2011, et seq., for injuries or death allegedly resulting from exposure to hazardous, toxic, and radioactive substances handled by Defendants Mallinckrodt, Inc., and Cotter Corporation at various times between 1942 and 1973, near Plaintiffs' residences and places of employment in north St. Louis County, Missouri.

         This case has a lengthy procedural history, which will not be recounted here except for a few relevant prior Orders. As will be more fully discussed below, first, in lieu of a Case Management Order (“CMO”) patterned after Lore v. Lone Pine Corp., No. L 33606-85, 1986 WL 637507 ( N.J.Super. Ct. Law Div., Nov. 18, 1986) (“Lone Pine”), [2] which Plaintiffs opposed, the Court ordered Plaintiffs to disclose to Defendants, within 60 days of filing suit, certain basic information about the nature of their claims, including a preliminary expert report regarding Plaintiffs' alleged exposure to radiation. ECF Nos. 231 & 286.[3] Second, in ruling on Defendants' prior motions to dismiss, the Court held that, although the substantive rules for decision in a public liability action under the PAA are generally derived from state law, the duty of care is defined by federal nuclear safety standards, to the extent applicable standards exist, and Plaintiffs must plead a breach of such standards to state a public liability action. ECF Nos. 141 & 262.

         Plaintiffs now move for relief from the requirement to produce preliminary expert reports (ECF No. 555), and Cotter moves to dismiss a newly-filed and consolidated member case, Metz v. Mallinckrodt LLC, Case No. 4:17-cv-00968, for failure to state a claim because the Plaintiff failed to plead exposure to radiation in an amount exceeding the applicable federal limit (Case No. 4:17-cv-00968, ECF No. 12). For the reasons set forth below, the Court will deny both motions.

         BACKGROUND

         According to the complaints, from 1942 to 1957, under contract with the federal government in connection with the Manhattan Project, Mallinckrodt refined and processed more than 50, 000 tons of uranium at a facility in downtown St. Louis, Missouri, and then transported radioactive waste materials to an area in north St. Louis County, near the airport. Throughout the 1960's, the radioactive waste materials were transported to a second site in north St. Louis County for storage.[4] Cotter purchased the materials in 1969 and, between 1969 and 1973, Cotter stored, processed, and transported the waste to a third site in north St. Louis County.

         Plaintiffs allege that Defendants' acts and omissions during the time periods discussed above caused the release of hazardous, toxic, and radioactive substances into the environment in north St. Louis County, thereby contaminating the air, soil, surface water, and ground water in areas where Plaintiffs lived and/or worked. Plaintiffs allege that, as a direct result of Defendants' reckless, negligent, and/or grossly negligent conduct, Plaintiffs were exposed to radioactive substances, and that this exposure caused various forms of cancer and, in some cases, death.

         In their original complaints, the first of which was filed on February 28, 2012, Plaintiffs failed to plead that Defendants breached an applicable federal nuclear safety standard, and Defendants moved to dismiss the complaints on this ground. The Court ruled on these motions on March 27, 2013. ECF No. 141. Although the United States Court of Appeals for the Eighth Circuit had not considered the issue, the Court followed every circuit court that had considered the issue and held that federal nuclear safety standards defined the duty of care in PAA public liability actions, and a breach of such standards was an essential element of Plaintiffs' claims. The Court gave Plaintiffs leave to amend their complaints accordingly. Id.

         Plaintiffs' amended complaints stated that the first federal regulations creating safety standards for the release of radioactive materials did not become effective until 1957, and that no applicable federal safety standards existed prior to 1957. Plaintiffs alleged that the first federal regulations with respect to levels of radiation and concentrations of radioactive materials in unrestricted areas open to the general public became effective on January 1, 1961, and appeared at 10 C.F.R. §§ 20.105 and 20.106. Plaintiffs alleged that, at this time, “the numerical radiation dose threshold regarding members of the general public included a 500 millirem[5] per year limit.”[6] ECF No. 201 at 5. All but 29 Plaintiffs specifically alleged that, “[a]s a result of Defendants' acts and omissions, ” his or her “average annual exposure to radiation” during the years he or she lived, worked, or recreated near the north St. Louis County sites “was in excess of 500 millirem.” See, e.g., ECF No. 201 at 6-14.

         Defendants moved to dismiss these amended complaints on June 20, 2014. Defendants did not dispute that the 500-millirem-per-year limit, derived from 10 C.F.R. § 20.105 (1961), was the applicable federal standard. Rather, Defendants argued that the 29 Plaintiffs who failed to plead a breach of that standard failed to state a public liability action, and that the remaining Plaintiffs failed to state a public liability action because their allegations regarding exposure in excess of that standard were too conclusory to satisfy federal pleading standards.

         In response to the motions to dismiss, Plaintiffs conceded that with respect to Cotter, whose conduct was alleged to have occurred between 1969 and 1973, the 29 Plaintiffs noted above failed to state a public liability action because they did not plead a breach of the 500-millirem-per-year limit. But Plaintiffs argued that the remaining Plaintiffs adequately pleaded a public liability action against Cotter.[7] The Court agreed. ECF No. 262.

         While the motions to dismiss discussed above were being litigated, Defendants also requested that the Court enter a Lone Pine order. Specifically, because of the complexity and volume of Plaintiffs' claims, Defendants requested that the Court require Plaintiffs to substantiate their allegations regarding exposure to radiation, injury, and causation, before proceeding to full discovery. Plaintiffs opposed this request. After conferring with the parties, and in light of Plaintiffs' attorneys' repeated statements that they possessed preliminary expert reports confirming the bases for Plaintiffs' claims, the Court resolved the dispute by foregoing a full Lone Pine order in favor of a requirement that, within 60 days of filing suit, each Plaintiff disclose to Defendants a completed questionnaire with basic information about his or her claim, together with a signed release of medical and employment records, and the preliminary expert report referenced by Plaintiffs' counsel, subject to any appropriate protective order agreed to by the parties. ECF Nos. 231 & 286.

         The parties engaged in extensive negotiations regarding the level of detail to be contained in the questionnaires, particularly with regard to the sources, pathways, and doses of radioactive materials to which Plaintiffs claimed to be exposed. Plaintiffs resisted including such detailed information in the questionnaires, stating that the information would be better addressed by the preliminary expert reports that Plaintiffs agreed to provide. See ECF No. 241. With the assistance of the Court, the parties ultimately agreed to a more abbreviated form of questionnaire, with more detailed information regarding Plaintiffs' alleged exposure to radioactive materials to be disclosed in the preliminary expert reports. ECF Nos. 246 & 247.

         On April 17, 2015, the Court also issued a phased CMO. The first phase of fact discovery, expert designations, and dispositive motions was limited to common issues that may be applicable to all or a substantial number of Plaintiffs, such as the manner in which radioactive material alleged to have caused Plaintiffs' injuries was transported to the locations where Plaintiffs were allegedly exposed; the type, amount, and level of radioactive material attributable to Defendants at the locations where Plaintiffs were allegedly exposed; and whether such level of exposure is sufficient to support a claim. ECF No. 286. The second phase was to be devoted to preparing a representative group of Plaintiffs (referred to in the CMOs as “Bellwether Plaintiffs”) for individual trials, including full discovery, expert designations, and dispositive motions applicable to each Bellwether Plaintiff's claims. See, e.g., ECF No. 571. At this stage, 36 potential Bellwether Plaintiffs have been selected for individual discovery and trial.

         On October 31, 2016, the parties informed the Court that Plaintiffs' attorneys had stopped producing preliminary expert reports in December 2015, despite filing claims on behalf of more than 250 Plaintiffs since that time. ECF No. 450. At a status conference held on November 7, 2016, Plaintiffs' attorneys represented that they believed the preliminary expert reports would no longer be necessary because they would be redundant of the expert reports Plaintiffs anticipated disclosing in the common-issues phase, discussed above. Further, according to Plaintiffs, the preliminary expert report requirement was “born out of the notion that [Plaintiffs] have to show exposure to a particular plaintiff in excess of 500 millirems . . . for post-1957 conduct” (ECF No. 459 at 27), which Plaintiffs asserted was not the correct legal standard. After hearing argument from the parties, on November 8, 2016, the Court allowed Plaintiffs an extension of time, until after Plaintiffs produced their common-issues expert reports, to provide their overdue preliminary expert reports. But the Court ordered that Plaintiffs must thereafter provide the reports unless, based on a motion by Plaintiffs, the Court relieved them of that requirement. ECF No. 453.

         Plaintiffs produced their common-issues expert reports to Defendants earlier this year, but they now move for relief from the requirement to produce preliminary expert reports for individual Plaintiffs.

         Beginning in March 2017, Plaintiffs' attorneys also filed complaints on behalf of several new Plaintiffs, including Robert Metz, in Metz v. Mallinckrodt LLC, Case No. 4:17-cv-00968. The new complaints no longer allege that each Plaintiff's exposure to radioactive material exceeded 500 millirem per year; instead, the complaints allege:

As a result of Defendants' acts and omissions described in this Complaint, Defendants released radiation into unrestricted areas in the environment in excess of the levels permitted by federal regulations in effect between 1957 and at least 1974. As a result of Defendants' acts and omissions described in this Complaint, Decedent was exposed to some ...

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