Opinion
Civil Action Nos. 19-CV-4839 (GRB)(RML) 19-CV-5475 (GRB)(RML) 19-CV-5729 (GRB)(RML) 20-CV-3055 (GRB)(RML)
2021-01-23
IN RE: BROOKHAVEN NATIONAL LABORATORY TRICHLOROETHYLENE ("TCE") CASES.
Joseph Lanni, Ilana Samantha Wolk, Jaehyun Oh, The Jacob D. Fuchsberg Law Firm, LLP, New York, NY, for Joseph Marino. John McGahren, Ariel Leigh Kapoano, Morgan, Lewis & Bockius LLP, Princeton, NJ, for Brookhaven Science Associates, L.L.C. Lawrence H. Cooke, III, Benjamin Preisendanz Argyle, Christopher Michael William Pioch, Venable LLP, New York, NY, for Associated Universities, Inc. Joshua Shane Snyder, Pro Hac Vice, Kathy K. Condo, Babst, Calland, Clements and Zomnir, PC, Pittsburgh, PA, Peter J. Pizzi, Walsh Pizzi O'Reilly Falanga LLP, New York, NY, Selina Miriam Ellis, Walsh Pizzi O'Reilly Falanga, Newark, NJ, for Zep, Inc. Joseph B. Schmit, Richard Weingarten, Phillips Lytle LLP, New York, NY, for Dow Chemical Co.
Joseph Lanni, Ilana Samantha Wolk, Jaehyun Oh, The Jacob D. Fuchsberg Law Firm, LLP, New York, NY, for Joseph Marino.
John McGahren, Ariel Leigh Kapoano, Morgan, Lewis & Bockius LLP, Princeton, NJ, for Brookhaven Science Associates, L.L.C.
Lawrence H. Cooke, III, Benjamin Preisendanz Argyle, Christopher Michael William Pioch, Venable LLP, New York, NY, for Associated Universities, Inc.
Joshua Shane Snyder, Pro Hac Vice, Kathy K. Condo, Babst, Calland, Clements and Zomnir, PC, Pittsburgh, PA, Peter J. Pizzi, Walsh Pizzi O'Reilly Falanga LLP, New York, NY, Selina Miriam Ellis, Walsh Pizzi O'Reilly Falanga, Newark, NJ, for Zep, Inc.
Joseph B. Schmit, Richard Weingarten, Phillips Lytle LLP, New York, NY, for Dow Chemical Co.
MEMORANDUM OF DECISION & ORDER
GARY R. BROWN, United States District Judge:
In defendants’ latest filings in these cases, they seek certification for appeal of various issues addressed in this Court's Order granting in part and denying in part the defendants’ motions to dismiss, Docket Entry ("DE") 67, familiarity with which is assumed here. Specifically, Brookhaven Science Associates, L.L.C. and Associated Universities, Inc. (collectively, the "employer-defendants") seek to certify the issue of whether they "are immune from suit and Plaintiff's claims must be dismissed because Plaintiff's claims are preempted in full by the statutory worker's compensation scheme provided by the EEOICPA." DE 69. In turn, Dow Chemical Co. and Zep, Inc. (collectively, the "manufacturer-defendants") seek to certify the issue of whether "Plaintiffs could avail themselves of the more favorable statute of limitations accrual date -- the FRCD -- under SARA, an amendment to CERCLA" despite the manufacturer-defendants’ assertation that they "cannot be sued under CERCLA." DE 70. Although defendants filed these requests as pre-motion conference letters, in accordance with the undersigned's individual rules, the Court construes these letters as the motions themselves and DENIES defendants’ motions for the reasons set forth below. A district court may certify an order for interlocutory appeal where the order (1) "involves a controlling question of law," (2) "as to which there is substantial ground for difference of opinion," and (3) "an immediate appeal from the order may materially advance the ultimate termination of the litigation[.]" 28 U.S.C. § 1292(b). Interlocutory appeals are nevertheless "a rare exception to the final judgment rule that generally prohibits piecemeal appeals" and are therefore "reserved for those cases where an intermediate appeal may avoid protracted litigation." Koehler v. Bank of Bermuda Ltd. , 101 F.3d 863, 865–66 (2d Cir. 1996).
All references to the docket are to that of Marino v. Brookhaven Science Associates, L.L.C. et al. , case no. 19-cv-4839 (GRB)(RML), as the letters (and order) at issue in the other cases addressed here are identical to those filed in the Marino action.
It is clear that the first prong of § 1292 is met here for both issues raised by defendants. If the Second Circuit were to hold that the compensation scheme established under the EEOICPA (42 U.S.C. § 7385c(a)) acts as a wholesale bar to any claims, even those predicated on conduct ostensibly outside of a defendant's "capacity as a contractor [or] subcontractor," DE 67 at 16-23, this would terminate all claims against the employer-defendants. By the same token, were the Second Circuit to hold that the FRCD does not apply to plaintiffs’ claims, this would terminate nearly all claims against the contractor-defendants. As a result, either alone or in combination, reversal on these issues would terminate nearly all of these cases, making both "controlling" questions of law. See Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria , 921 F.2d 21, 24 (2d Cir. 1990).
However, these issues fail to meet the remaining two prongs. "[T]he mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion." In re Flor , 79 F.3d 281, 284 (2d Cir. 1996). Rather, the court must "analyze the strength of the arguments in opposition to the challenged ruling when deciding whether the issue for appeal is truly one on which there is a substantial ground for dispute." Id. As addressed in detail in the order at issue, the plain language of the EEOICPA clearly leads to the conclusion that its exclusivity bar is limited in at least some fashion by the "capacity" qualifier. DE 67 at 17-20. Defendants present no arguments to contradict this conclusion. Similarly, the "statutory language and applicable case law," such as it is, supports the holding that "a plaintiff need not assert, nor be in a position to assert, a CERCLA claim in order to take advantage of the FRCD." Id. at 9. Defendants correctly observe that one of the cases cited in the Order, In re Pfohl Bros. Landfill Litig. , 26 F. Supp. 2d 512, 517 (W.D.N.Y. 1998), did not explicitly hold that the limitations period under the FRCD would apply even where a plaintiff could not bring a CERCLA claim. But once again, defendants fail to contest the conclusion that the statutory language is fairly clear on the issue: 42 U.S.C. § 9658(a) contains no language limiting the application of the FRCD to "responsible parties" (i.e., those liable to CERCLA claims) as defined elsewhere by CERCLA. This omission is all the more glaring in light of the provision's explicit restriction to damages caused by substances "released into the environment from a facility," all defined terms which the defendants address at length elsewhere. See DE 57 at 17-19. Finally, while the defendants cite the fact that other courts have held differently on these issues, the presence of merely one or two cases, from outside this circuit, that come to a different conclusion is not sufficient to present a "substantial ground for dispute." Holding otherwise would risk turning interlocutory appeals from a "rare exception" into the default rule.
Furthermore, the manufacturer-defendants appear to concede that CERCLA claims could be brought against them upon "a finding that [they are] ‘responsible’ person[s] under § 9607." DE 57 at 14. Such a finding would require further factual development in this case, further weighing against certification at this juncture.
The third prong is "closely connected" with the first, and is met "when an intermediate appeal ‘promises to advance the time for trial or to shorten the time required for trial.’ " Capitol Records, LLC v. Vimeo, LLC , 972 F. Supp. 2d 537, 551 (S.D.N.Y. 2013) (citation omitted). The fact that, as noted above, these cases would be dismissed in whole or in part if defendants were to prevail would suggest that certification could "expedite this litigation." Republic of Colombia v. Diageo N. Am. Inc. , 619 F. Supp. 2d 7, 11 (E.D.N.Y. 2007). However, in an effort to avoid conflating this prong with the first, the Court must consider all factors that may impact the chance for any appeal to actually "advance the time for trial." As noted above, defendants fail to establish that these issues present any "substantial ground for difference of opinion." Despite the fact that a finding in defendants’ favor would resolve many, if not all, of the issues in these cases, the Court finds the likelihood of that outcome to be sufficiently low that certification at this stage would almost certainly lengthen, rather than shorten, the time required for trial – particularly if, as defendants request, discovery is stayed pending resolution of the appeal.
Finally, it is worth noting that district court judges "retain unfettered discretion to deny certification of an order for interlocutory appeal even where the three legislative criteria of section 1292(b) appear to be met." Nat'l Asbestos Workers Med. Fund v. Philip Morris, Inc. , 71 F. Supp. 2d 139, 162 (E.D.N.Y. 1999). Setting aside, for the moment, the three factors under § 1292(b), and taking into account the Second Circuit's directive that only "exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment," Klinghoffer , 921 F.2d at 25 (quoting Coopers & Lybrand v. Livesay , 437 U.S. 463, 475, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) ), any "exceptional circumstances" here only point toward denial of certification. As this Court previously observed, defendants "have already delayed these proceedings with the instant motion practice, predicated, in some instances, on marginal arguments, for the better part of a year, while simultaneously increasing the costs of this litigation." DE 67 at 15. Further delays of the kind that certification would bring are unjustifiable, particularly in light of the serious injuries suffered by the plaintiffs in this case, allegedly at defendants’ hands. The parties are therefore strongly encouraged to follow the directives of Rule 1 and pursue the "just, speedy, and inexpensive" determination of this action. Fed. R. Civ. P. 1.
For the reasons set forth above, defendants’ motions are hereby DENIED in their entirety.