# Adams v. Atlantic Richfield Company

> District Court, N.D. Indiana · September 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10164493

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** September 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10164493

## How later opinions describe it (automated extraction)

- holding that patient suffering from the destruction of healthy lung tissue due to physician’s failure to diagnose cancer was sufficient for negligent infliction of emotional distress

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DESHEENA ADAMS, et al., )
)
Plaintiffs, )
)
v. ) Cause No. 2:18-CV-375-PPS-JPK
)
ATLANTIC RICHFIELD COMPANY, )
et al., )
)
Defendants. )
OPINION AND ORDER
This is an old case that was reassigned to me late last year. [DE 195.] It is one of a
series of related toxic tort lawsuits brought in this district by various groups of East
Chicago residents.1 With one exception (the Alvarez case), all of these matters have yet to
proceed past the pleading stage. The plaintiffs in this case are 54 former residents of the
West Calumet Housing Complex, and four individuals who resided nearby in a private,
single-family home. Those four individuals who lived adjacent to West Calumet are
Minerva Ramirez, D.R.1, C.R., and M.R. (who I’ll refer to collectively as “Ramirez”).
Plaintiffs claim various entities negligently exposed them to harmful levels of lead,
1 See Holiday et al. v. Atlantic Richfield Company, No. 2:16-CV-525 (Dec. 20, 2016); Barbee et al. v.
Atlantic Richfield Company et al., No. 2:17-CV-193 (Apr. 26, 2017); Baker et al. v. Atlantic Richfield Company et
al., No. 2:17-CV-429 (Nov. 15, 2017); Alvarez et al. v. Atlantic Richfield Company et al., No. 2:17-CV-414 (Oct.
31, 2017). See also S.A. et al. v. E.I. Du Pont de Nemours and Co. et al., No. 2:22-CV-359 (Nov. 22, 2022). In
addition to the matters pending before this Court, I am advised that a group of plaintiffs are separately
pursuing claims against the City of East Chicago and various other state and municipal entities, as part of
two consolidated actions currently pending in Lake Superior Court. See G.J.2 et al. v. Indiana State Dept. of
Health, et al., No. 45D05-1803-CT-3 (Mar. 13, 2018). In state court, the plaintiffs assert that the government
knowingly and intentionally constructed West Calumet and Carrie Gosch on polluted land, let plaintiffs
live there unwittingly, and failed to warn them about the contamination.
arsenic, and other toxins by introducing these hazardous materials decades ago on land
adjacent to West Calumet.
Defendants E.I. du Pont de Nemours and Company and the Chemours Company

(collectively, “DuPont”) and Hammond Lead Products, LLC, Halstab, LLC, Hammond
Group, Inc., Halstab, LLC, and Halox, LLC (collectively, “Hammond Lead”) have moved
to dismiss Plaintiffs’ Second Amended Complaint [DE 224] pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. [DE 228; DE 231.] Defendant Atlantic Richfield
Company has also filed a motion to dismiss [DE 236], arguing that the Ramirez

plaintiffs’ negligence and negligent infliction of emotional distress claims must be
dismissed for failure to state a claim.2 For the reasons explained in this order, I largely
agree with the defendants that the claims must be dismissed.
Procedural Background
One might reasonably wonder how a case filed in 2018 is still at the pleading
stage. Here’s how we got here. Plaintiffs originally filed this case in state court; it was

removed to federal court in late 2018. [DE 1; DE 5.] Plaintiffs sought to remand the case,
[DE 60], but in light of a pending appeal in a related matter, see Baker et al. v. Atl. Richfield
Co. et al., Nos. 19-3159, 19-3160, 962 F.3d 937 (7th Cir. 2020), the parties stipulated to stay
execution of any remand order. [DE 86; DE 92.] In Baker, Judge Van Bokkelen found that
removal was improper based on the federal officer removal statute, 18 U.S.C.

2 I’ll also note that U.S. Smelter and Lead Refinery, Inc., another defendant named in the
operative complaint, has answered the pleading. [DE 230.]
2
§ 1442(a)(1), and he therefore remanded the case. On June 18, 2020, the Seventh Circuit
reversed and remanded Judge Van Bokkelen’s order granting remand in Baker, finding
that the case could proceed in federal court because removal was proper under the

federal officer removal statute. 962 F.3d at 940.
After the Seventh Circuit’s opinion in Baker was handed down, the stay in this
case was lifted, and Judge Van Bokkelen ordered the parties to file supplemental briefing
discussing how, if at all, the Seventh Circuit’s decision in Baker affected Plaintiffs’
position on remand. [DE 107; DE 108.] Plaintiffs subsequently withdrew their motion to

remand. [DE 109; DE 110.]
Following this procedural interlude, the originally named defendants sought to
dismiss Plaintiffs’ operative complaint. [DE 111; DE 113; DE 116; DE 119; DE 122; see
DE 59.] In the course of the briefing, Plaintiffs agreed to voluntarily dismiss claims
against some defendants. [DE 134.] Judge Van Bokkelen took up the balance of the
motions to dismiss, and in October 2021 entered a comprehensive opinion and order

granting the motions, in part. [DE 157.] Plaintiffs thereafter sought leave to amend the
complaint, which the defendants opposed, and Judge Kolar sorted it out in the fall of
2022. [DE 162; DE 180; DE 202.] In the proposed amended complaint, plaintiffs
reasserted claims of strict liability, negligence, and NIED claims, and added a cause of
action for “medical monitoring,” against all defendants. Noting Plaintiffs’ complaint

presented “several difficult or unsettled legal issues,” Judge Kolar granted leave to
amend. [See DE 180 at 7.]
3
Initially, Judge Kolar concluded that only 3 of the 84 plaintiffs named in the
proposed amended complaint alleged a present physical injury related to “exposure” to
toxic substances required to state a negligence claim. The 81 other plaintiffs were denied

leave to amend to assert negligence claims, and Judge Kolar found that further
amendment would be futile. Id. at 9–12. In sum, only Minerva Ramirez, C.R., and
Liduvina Espinosa were permitted to proceed on their negligence claims, as they were
the only plaintiffs that adequately alleged present physical injuries. Id. at 12.
Following Judge Van Bokkelen’s prior order, Judge Kolar denied leave to amend

to assert strict liability claims for all but the three plaintiffs that alleged physical injuries.
Id. at 16. As to those three, the defendants argued leave to amend was futile because
their alleged activities were not “abnormally dangerous,” as required by state law.
Noting that state law was not crystal clear on whether manufacturing processes that lead
to toxic contamination qualify as abnormally dangerous activities, Judge Kolar was not
“certain” that these plaintiffs’ strict liability claims were doomed on a motion to dismiss.

Accordingly, he granted them leave to amend on the strict liability count. Id. at 19.
As to the Plaintiffs’ NIED claims, Judge Kolar observed that the Court had
previously ruled that absent an injury sufficient to sustain a negligence claim, Plaintiffs
could not state an NIED claim based on alleged “emotional distress” damages, standing
alone. [DE 180 at 13 (citing DE 157 at 9).] However, following Judge Van Bokkelen’s

opinion and order, the Indiana Supreme Court issued an opinion potentially supporting
an alternative interpretation of state law on this issue and which now muddies the
4
water. See Community Health Network, Inc. v. McKenzie, 185 N.E.3d 368 (Ind. 2022). In light
of this new authority, Judge Kolar was not “certain” the proposed NIED claims would
fail on a motion to dismiss, so he granted leave to amend with respect to the NIED

claims. [DE 180 at 15–16.] All of the named plaintiffs were granted leave to assert NIED
claims “based on their allegations of emotional distress.” Id. at 16.
Finally, Judge Kolar denied leave to amend to assert nuisance claims, noting that
nearly all Plaintiffs resided in West Calumet, which had been demolished; and state law
“does not contemplate recovery for a past nuisance.” [DE 180 at 20.] There was one

exception: the Ramirez plaintiffs could proceed on a nuisance theory against DuPont,
because they currently reside on the allegedly contaminated land. Id. At 20–21. Because
case law appeared split on whether a nuisance claim lies where “a defendant’s polluting
conduct has ceased, but the nuisance has not,” Judge Kolar reasoned that it was “not
clear” that the Ramirez plaintiffs’ nuisance claims would fail on a motion to dismiss, so
he granted them leave to amend on this count, as well.3

With this complicated procedural background in mind, I now turn to the
allegations of Plaintiffs’ operative complaint.

3 While not relevant for present purposes, for the sake of completeness, I will also note that Judge
Kolar denied leave to amend to assert claims for “medical monitoring,” finding that Indiana law does not
provide an independent cause of action for medical monitoring. [DE 180 at 16.]
5
The Second Amended Complaint
Plaintiffs are 60 East Chicago residents who previously resided at the West
Calumet Housing Complex, a public housing project, or own property near the former

site of West Calumet. [DE 224, ¶¶ 26–27.] Evidently, someone in the East Chicago
Housing Authority thought it was a good idea to build a large housing project on the
site of a former lead refinery. And that’s just what happened when the West Calumet
project went up in the early 1970s. Unsurprisingly, the site was later designated by EPA
as a Superfund Site, and in 2016 the City of East Chicago informed residents of West

Calumet that they would have to move out of the housing complex. This mass exodus
occurred in 2016 and 2017, and the complex closed for good shortly thereafter. A year
later it was demolished. Out of all the Plaintiffs, only the Ramirez plaintiffs, who reside
in a single family home located within the Superfund Site, remain.
The pollution at the heart of this case dates back over a century. U.S. Smelter and
Lead Refinery, Inc. operated a smelter from 1906 to 1985 that produced lead dust and

other hazardous substances, causing contamination of the Superfund Site. From 1910 to
1949, Plaintiffs claim DuPont operated a facility next door that manufactured lead
arsenate insecticide, which allegedly “contributed to pollution” of the land. Hammond
Lead had its manufacturing operations at two locations south of the Superfund Site,
which Plaintiffs claim “also contributed to its contamination with hazardous

substances,” including lead and arsenic. Finally, Plaintiffs claim that from 1938 to 1965, a

6
predecessor of Atlantic Richfield operated a facility manufacturing white lead and zinc
oxide on land later designated part of the Superfund Site.
The EPA has been involved with the Superfund Site for over two decades. In

August 2005, the EPA listed among “parties potentially responsible for the
contamination at [the Superfund Site]” DuPont, Hammond Lead, and Atlantic Richfield
Company and BP West Coast Products, LLC (originally named defendants who were
dismissed from the case), along with unidentified “others.” In 2009, the Superfund Site
was placed on the National Priorities List, and the EPA in 2014 filed suit against Atlantic

Richfield and DuPont in connection with pollution on the Superfund Site. That case was
assigned to me, see Cause No. 2:14-CV-312-PPS-PRC, and was resolved with a consent
decree, pursuant to which the defendants agreed to pay roughly $26 million to clean up
the property.
For decades, residents of West Calumet claim they were unwittingly exposed to
contamination directly caused by Defendants. Although Defendants knew of the

contamination and its dangers, Plaintiffs assert that they “intentionally” and “actively
concealed” the fact and extent of the pollution and the dangers it posed. At the same
time, Plaintiffs acknowledge the fact that the government investigated pollution at the
Superfund Site for many years, put the Superfund Site on the National Priorities list, and
pursued an enforcement action against Atlantic Richfield and DuPont to remediate the

pollution dating back to 1910. Despite all this action around the Superfund Site years
prior to the closure of West Calumet, Plaintiffs claim they were first notified of the
7
contamination and its dangers in July 2016, when the Mayor of East Chicago notified
them about results of the EPA’s testing at the Superfund Site. While the government
collected samples from the Superfund Site for many years during its investigation,

Plaintiffs claim they only received these samples in 2016.
That November, West Calumet residents sought to intervene in the government’s
enforcement action, hoping to weigh in on the remediation plan. I denied the motion to
intervene and noted that the proposed clean-up plan was mailed to all residents within
two miles of the Superfund Site and notice of the lodging of the consent decree was filed

years earlier, in September 2014. See United States v. Atlantic Richfield Co., 324 F.R.D. 187,
189, 191–92 (N.D. Ind. 2018). Plaintiffs nonetheless allege that they were unaware of their
exposure to hazardous levels of contamination caused by Defendants’ pollution at the
Superfund Site until they received notice of the EPA’s testing results from the City of
East Chicago in July 2016.
The Second Amended Complaint asserts claims for strict liability, negligence,

nuisance, and NIED against DuPont, Hammond Lead, U.S. Smelter and Lead Refinery,
Inc., and Atlantic Richfield. [DE 224.] More specifically, Counts I and III assert strict
liability and negligence claims, on behalf of Ramirez, C.R., and Espinosa, against
DuPont, Hammond Lead, and U.S. Smelter. Counts II and IV assert strict liability and
negligence claims, on behalf of Ramirez and C.R. only, as against Atlantic Richfield.

Ramirez also reasserts a claim for nuisance against DuPont (Count V). Finally, all

8
Plaintiffs reassert NIED claims based on their exposure to “disease-causing
contaminants” and their associated emotional distress (Counts VI–VII).
In sum, the Second Amended Complaint alleges the defendants caused

environmental contamination on land where they used to live or currently reside and
failed to warn residents of the pollution for decades. This allegedly caused Plaintiffs to
suffer physical and emotional damages as a result of ingesting harmful levels hazardous
levels of lead and other toxins on their properties. Moreover, the Ramirez plaintiffs
allege they have suffered damage in the form of reduced property value. [See, e.g., DE

224, ¶ 102.]
Requests for Judicial Notice
Before diving into the substance of the motions to dismiss, Atlantic Richfield and
DuPont request that I take judicial notice of various documents bearing on Plaintiffs’
claims. [DE 235; DE 238.] More specifically, DuPont proffers a 2021 EPA report about the
Superfund Site, as well as two warranty deeds, which respectively memorialize transfers

of the underlying property from DuPont to Chemours in 2015, and from Chemours to
East Chicago Gateway Partners, LLC in 2018. For its part, Atlantic Richfield requests I
take judicial notice of the consent decree entered in the 2014 enforcement action, Adams’
state court complaint (Cause No. 45D01-1809-CT-000526), four warranty deeds
memorializing transfers of the underlying property, and three documents (a warranty

deed, a transfer on death deed, and a survivorship affidavit) pertaining to the Ramirez’s
residence.
9
As Judge Van Bokkelen previously explained, records of this variety, such as
“court records, agency decisions, administrative body reports, and government
websites,” are “appropriate subjects of judicial notice.” [DE 157 at 2 (internal citations

omitted).] Plaintiffs have not filed any response to the motions for judicial notice; they
will be granted. Therefore, I take notice of the fact that the “documents exist, they say
what they say, and they have had legal consequences.” Our Country Home Enters. v.
Comm’r of Internal Revenue, 855 F.3d 773, 782 n.1 (7th Cir. 2017). I will refer to the
documents in the following discussion of Plaintiffs’ claims, to the extent the relevant

facts have bearing on the plausibility of their claims.
Discussion
Let’s start with a brief discussion of the standards that govern my
decisionmaking. Under Federal Rule of Civil Procedure 8(a), Plaintiffs’ complaint must
contain “a short and plain statement showing that [he] is entitled to relief.” Fed. R. Civ.
P. 8(a). Federal Rule of Civil Procedure 12(b)(6) permits a party to move for dismissal if

the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6).
At this stage, I accept the complaint’s allegations as true and draw all reasonable
inferences in favor of the plaintiffs. Bradley Hotel Corp. v. Aspen Specialty Ins. Co., 19 F.4th
1002, 1006 (7th Cir. 2021). However, to avoid dismissal under Rule 12(b)(6), a claim for

relief must be “plausible on its face.” Proft v. Raoul, 944 F.3d 686, 690 (7th Cir. 2019)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility requires a
10
plaintiff to plead sufficient “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Taha v. Int’l Brotherhood
of Teamsters, Local 781, 947 F.3d 464, 469 (7th Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)). The Seventh Circuit has explained that a plaintiff must plead facts that
“suggest a right to relief that is beyond the speculative level,” which requires alleging
“enough details about the subject-matter of the case to present a story that holds
together.” Sevugan v. Direct Energy Servs., LLC, 931 F.3d 610, 614 (7th Cir. 2019); Swanson
v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). “[S]heer speculation, bald assertions,

and unsupported conclusory statements” in the complaint fail to meet this burden. Taha,
947 F.3d at 469.
Defendants first argue this case should be dismissed on the pleadings because it
was untimely filed. They also argue that each of the claims—negligence, NIED, strict
liability, and nuisance—must all be dismissed for a variety of reasons. I’ll take up each of
the arguments in turn below.

I. Statute of Limitations
First up is Defendants’ argument that the adult plaintiffs’ claims are barred by the
applicable statute of limitations. [DE 234 at 27–31; DE 237 at 23–26. See also DE 229 at 15.]
See generally Ind. Code § 34-11-2-4 (two-year statute of limitations for personal injury
actions), § 34-11-2-7 (six-year statute of limitations for property claims). The statute of

limitations is an affirmative defense for which Defendants bear the burden of proof. U.S.
Gypsum Co. v. Ind. Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003); see, e.g., Rogers v. Allen
11
Superior Court, 2017 WL 879635, at *1 (N.D. Ind. Mar. 6, 2017). In other words, plaintiffs
need not anticipate or plead around affirmative defenses like statute of limitations.
Chicago Building Design v. Mongolian House Inc., 770 F.3d 610, 613–14 (7th Cir. 2014).

Under Indiana law, which governs here, the limitations period started when
Plaintiffs knew or, in the exercise of ordinary diligence, should have known of their
injuries. Cooper Indus., LLC v. City of S. Bend, 899 N.E.2d 1274, 1280 (Ind. 2009) (citing
Wheling v. Citizens Nat’l Bank, 586 N.E.2d 840 (Ind. 1992)) (holding it is only necessary
that “some ascertainable damage has occurred”). Here, Defendants tell me the claims are

all time-barred because the complaint acknowledges a wide array of governmental
efforts to investigate pollution at the Superfund Site that occurred several years prior to
the filing of this lawsuit.
It is true that in April 2009, the EPA added the Superfund Site to its National
Priorities List, and in 2014 the EPA filed an enforcement action against Atlantic Richfield
and DuPont. Moreover, in a state-court case filed July 9, 2018, Ramirez asserted that she

“now believe[d] . . . emergency soil removal” efforts took place on her property in 2011,
as she saw personnel from the City of East Chicago “working . . . with EPA and [IDEM]
personnel on testing for and remediation of toxic contamination.” [DE 238-8 at 11–12
(emphasis added).] However, it’s not really clear Ramirez “believe[d]” that to be the case
in 2011, when she observed the testing firsthand. The state court complaint goes on to

say that Ramirez asked the workers “if everything [was] ‘O.K.,” and they replied that
“there was nothing to worry about and that she should not bother herself about it.” The
12
workers did not inform her that “they were testing for or remediating lead”
contamination on the property. Id. at 12. It was only a “significant time after” these
events that “officials from IDEM and the City [of East Chicago] contacted [her] and

suggested that the soil in her yard should be removed and remediated,” at which point
she “realized what the workers she had seen previously were doing.” Id.
Judge Van Bokkelen previously considered similar arguments in light of the same
allegations in the complaint and declined to dismiss the claims on statute of limitations
grounds. I will follow this tack and accept Plaintiffs’ allegations that they only became

aware of the contamination, or should have become aware of the contamination, when
they were informed about the results of the EPA testing by the City of East Chicago in
July 2016, within the limitations period. [See DE 157 at 7–8.] This ruling is further
buttressed by a decision of the Indiana Court of Appeals in a parallel case. State v.
Alvarez, 150 N.E.3d 206, 215–17 (Ind. Ct. App. 2020).
In short, I see no reason to depart from this reasoning, in light of the similarities

between the relevant allegations. While the Defendants’ statute of limitations argument
may ultimately carry the day, that is a matter better left for summary judgment. It would
be “irregular” to dismiss a case at this stage on statute of limitations grounds since it is
an affirmative defense. Chicago Bldg. Design, 770 F.3d at 613 (internal quotation omitted).
So for now, I accept as true plaintiffs’ allegations that they did not discover their alleged

exposure to lead contamination caused by Defendants until July 25, 2016. Therefore,
dismissal on statute of limitations grounds will be denied.
13
II. Negligence Claims
Under Indiana law, a negligence claim requires a showing that: (1) the defendant
owed the plaintiff a duty of care; (2) the defendant breached that duty by allowing

conduct to fall below the applicable standard of care; and (3) the plaintiff suffered
compensable injury proximately caused by the defendant’s breach. Knighten v. E. Chi.
Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). Ramirez, C.R., and Espinosa (all of whom
claim they developed specific ailments as a result of exposure to toxins allegedly
deposited by the defendants) assert negligence claims against DuPont and Hammond

Lead (Count III), and Ramirez and C.R. also assert negligence claims against Atlantic
Richfield (Count IV).4
A. Atlantic Richfield
First, I’ll take up the claims against Atlantic Richfield. It tells me that the claims
must fail because it owed the plaintiffs no duty, the plaintiffs have failed to adequately
allege causation, and the plaintiffs lack the requisite physical impact to state a claim.

[DE 237 at 7–8.] I find the claims fail on the first element: the facts properly before me
reflect that Atlantic Richfield owed these plaintiffs no common law duty of care.
Under Indiana law, “Whether a duty exists is a question of law for the court to
decide.” Goodwin v. Yeakles’ Sports Bar and Grill, 62 N.E.3d 384, 386–87 (Ind. 2016). Courts

4 As pertains to Plaintiffs’ allegations of present physical injuries caused by Defendants’ alleged
negligence, I note that the complaint only provides factual allegations about health conditions directly
linked to exposure to hazardous levels of lead and arsenic. [DE 224, ¶¶ 3–4, 93–94.] Plaintiffs’ allegations
about injuries linked to “other toxins” are vague and undeveloped, and I will therefore not address them.
14
evaluate the existence of a common law duty of care in light of three factors: “(1) the
relationship between the parties; (2) the foreseeabity of the harm; and (3) public policy
concerns.” Id. at 387. “[T]he foreseeability component of duty requires a more general

analysis of the broad type of plaintiff and harm involved, without regard to the facts of
the actual occurrence.” Walker v. City of E. Chicago, 2017 WL 4340259, at *7 (N.D. Ind.
Sept. 29, 2017) (quoting Goodwin, 622 N.E.3d at 390). Judge Van Bokkelen concluded
Atlantic Richfield owed the Ramirez plaintiffs a duty to exercise reasonable care when
handling hazardous materials on its land in order to prevent contamination from leaving

its property, based on their allegations that they “resided on land that is within the EPA-
designated Site but is not alleged to be on the former Atlantic Richfield property.”
[DE 157 at 12.]
Atlantic Richfield tells me there is more to the story. It points me to historical
deeds showing that its alleged predecessors sold any interest in the property on which it
conducted industrial operations by 1946, and sold all interests in land within the

Superfund Site by 1949. [DE 238-4; DE 238-5; DE 238-6.] While the complaint does not
specify when the Ramirez plaintiffs obtained an interest in their residence, historical
deeds reflect Mike and Kathryn Mihalovich transferred a deed for the property to Elroy
and Lupe Ramirez in 1966, and that Minerva Ramirez’s interest in the property will not
accrue until the death of Lupe Ramirez. [DE 238-7; see DE 238-9.] All told, these

documents reflect a gap of at least twenty years between the ownership of the land in

15
question by certain predecessors of Atlantic Richfield and the earliest point in time the
Ramirez plaintiffs could have obtained an interest in their neighboring property.
On the first round of motions to dismiss, the court did not directly engage with

the substance of Atlantic Richfield’s argument – that, based on facts properly subject to
judicial notice, the Ramirez plaintiffs lack the type of relationship that gives rise to a
common law duty of care under this three-pronged balancing test. See Tyson Fresh Meats,
Inc. v. Dykhuis Farms, Inc., 2022 WL 971111, at *2 (N.D. Ind. Mar. 31, 2022). Evidently,
Judge Van Bokkelen concluded that this claim implicated the duty acknowledged in

Rolan v. Atlantic Richfield Company, 2017 WL 3191791 (N.D. Ind. July 26, 2017). In that
case, Judge Springmann concluded that the plaintiffs (former West Calumet residents)
plausibly alleged DuPont’s duty to exercise reasonable care when handling hazardous
materials in order to prevent contamination from leaving its property. Id. at *18. In
applying the three-pronged balancing test, she specifically noted that “the parties stand
in a relationship as possessors of interests in neighboring properties.” Id.

Plaintiffs tell me that Atlantic Richfield’s duty “has already been established
under Rolan,” because Judge Springmann’s analysis of “DuPont’s duty . . . applies
perfectly to Atlantic Richfield’s posture in the present case,” with respect to Ramirez and
C.R. [DE 243 at 7–8.] But the facts before me suggest that this case is a different kettle of
fish. Plaintiffs do not meaningfully dispute the fact that Ramirez and C.R. presently lack

an ownership interest in the property, despite residing there; and they do not dispute
that Ramirez and C.R. could not have acquired an interest in the property until 1966. See
16
Wallen v. Mapletree Transp. Inc., 2016 WL 7449509, at *3 (N.D. Ind. Dec. 28, 2016) (“To
establish a claim for negligence under Indiana law, a plaintiff must prove that the
defendant owed him a duty of care at the time of the injury.” (emphasis added)) (citing

Neal v. Cure, 937 N.E.2d 1227, 1236 (Ind. Ct. App. 2010).
In other words, at the earliest, these plaintiffs obtained an interest in their
property some twenty years after Atlantic Richfield’s corporate predecessors ceased their
industrial activity and sold the properties they owned on the Superfund Site. This
significant temporal gap between the parties’ interests in the polluting and neighboring

properties undermines the notion that Ramirez and C.R. “stand in a relationship as
possessors of interests in neighboring properties” in the way that was deemed
meaningful in Rolan. See 2017 WL 3191791, at *17–18 (noting “DuPont’s plant neighbored
the property upon which the Plaintiffs live,” and plaintiffs specifically alleged “DuPont
owns, and for many years owned and operated a pesticide lead arsenate production
facility,” in close proximity to the housing project in which plaintiffs resided (emphasis

added)). Accord Neal, 937 N.E.2d at 1236 (“A claimant asserting negligence must show
that the defendant owed her a duty of care at the time the injury occurred.” (emphasis
added)).
In addition to Rolan, Judge Van Bokkelen favorably cited an Indiana appellate
court decision, KB Home Indiana Inc. v. Rockville TBD Corp., 928 N.E.2d 297 (Ind. Ct. App.

2010). In KB Home, the court revived the plaintiff’s negligence claim, which had been
dismissed at summary judgment under Indiana’s “economic loss doctrine.” 928 N.E.2d
17
at 304. An airplane component manufacturer named L&E discharged chemical solvents
into its septic system. Between 1969 and 1990, the solvents “leached” into the
surrounding land. Id. at 299–300. New owners purchased L&E’s stock in 1991, but L&E

retained ownership of the business operating on the property. In 1993, L&E’s
manufacturing assets were sold to another company (Ferco) and the company was
renamed as Rockville TBD Corporation. “[S]ometime in 1993,” the discharges of solvents
ceased. Id. at 300.
In 1989, two individuals had purchased unimproved farmland next door. In 1998,

these individuals entered an agreement with KB Home to develop that neighboring land
into a residential subdivision. Id. KB Home started purchasing lots on the neighboring
land for purposes of contracting with home buyers – only to uncover in March 2005,
following an environmental investigation, that it was contaminated. KB Home sued
Rockville, the newer company that owned the manufacturing assets of the predecessor
entity (L&E) that had discharged the solvents on the neighboring land decades earlier,

claiming that Rockville breached a duty to control and maintain the site and/or its
operations on the site in a non-polluting manner and to prevent hazardous substances
from invading adjacent properties. Id. at 302.
The trial court dismissed the negligence claims at summary judgment, finding
that KB Home was barred from asserting such claims as a matter of law under Indiana’s

“economic loss doctrine.” See 928 N.E.2d at 304 (“Indiana law . . . is that damage from a
defective product or service may be recoverable under a tort theory if the defect causes
18
personal injury or damage to other property, but contract law governs damage to the
product or service itself and purely economic loss arising from the failure of the product
or service to perform as expected. . . . ‘Economic losses’ occur when there is no personal

injury and no physical harm to other property.”). The Court of Appeals disagreed. It
observed that KB Home did not contract with Rockville to purchase anything. Moreover,
any breach of warranty by the two individuals who sold the neighboring plats to KB
Home did “not absolve Rockville of responsibility for its negligent conduct that may
have caused the contamination” under the economic loss doctrine. Id. at 305.

While KB Home could be read broadly to declare a duty of care owed by
landowners to any future owners of neighboring properties to exercise reasonable care in
their handling of hazardous materials on their property, the court had no occasion to
weigh in on such a broad proposition of law (the error assigned on appeal was far
narrower). And in any case, the court in KB Home did not evaluate the imposition of a
common law duty of care whatsoever. Here, the facts properly before me reflect Atlantic

Richfield’s predecessors sold their interest in the underlying property decades prior to
anybody in Ramirez’s family residing on a neighboring property within the Superfund
Site; and there is no suggestion that Ramirez presently owns the property, in contrast
with KB Home. Noting these distinctions, I decline to place dispositive weight KB Home
as it does not broadly declare a duty owed by property owners handling hazardous

materials to any and all future owners of neighboring properties. To the extent it does,
again, the facts show that Ramirez does not qualify as an “owner” of the property; so it
19
is at the very least questionable whether this broader interpretation of the case would
save the claims.
Moreover, the complaint specifically cites statements, made in 1966, to the effect

that the area in question was “surrounded by industries and undesirable residential
areas,” and was “vacant.” [DE 224, ¶ 78.] This admission substantially undermines the
notion that Plaintiffs’ alleged injures were reasonably foreseeable under the
circumstances. See Goodwin, 62 N.E.3d at 392–92. Plaintiffs are entitled to all reasonable
inferences from their well-pled factual allegations that support a plausible claim for

relief. But, given the record before me, it strains credulity to infer that Atlantic Richfield
would have reasonably foreseen the harm to “future residents living on or near their
facilities,” when in fact, Plaintiffs claim that the land surrounding the facilities was
“vacant” and “surrounded by industries” at the point in time they first could have
obtained a legal interest in the property.
In sum, because the relationship between the parties is remote, to say the least,

and Plaintiffs’ factual allegations reflect that their harm was not reasonably foreseeable
under the circumstances, Atlantic Richfield owed no common law duty of care to
Ramirez and C.R. Accordingly, the negligence claim against Atlantic Richfield will be
dismissed with prejudice.
B. DuPont and Hammond Lead

Shifting gears to the negligence claims asserted by Ramirez, C.R., and Espinosa
against DuPont and Hammond Lead—these claims will be allowed to proceed. The
20
defendants renew their argument that the complaint fails to plausibly allege a duty to
warn [DE 234 at 21–23], and because these plaintiffs fail to allege they suffered injuries
specifically caused by the defendants’ activities [id. at 19–21; DE 229 at 9–10.]

DuPont essentially asks me to ignore the specific allegation that Defendants kept
the pollution a secret from Plaintiffs, and they were only informed of the extent of the
pollution in 2016, because this allegation is “conclusory” and “implausible” in context.
To be sure, there are facts alleged in the complaint detailing a history of EPA
investigation and enforcement activity in connection with the Superfund Site. It’s

possible that such activity reasonably put Ramirez, C.R., and Espinosa on notice of the
contamination of the land prior to receiving a letter from the City of East Chicago in
2016. But they tell me a different story, and it strikes me as a plausible one.
It may be that a preponderance of evidence reflects these plaintiffs reasonably
knew of the contamination and the defendants did not owe a duty to warn based on the
EPA listing the Superfund Site on its National Priorities list, or based on its enforcement

action filed a little over two years prior to this suit. But the question at this stage is
whether these plaintiffs have plausibly alleged that they could not have reasonably
known of their injuries caused by exposure to hazardous levels of lead contamination
because DuPont and Hammond Lead intentionally failed to inform them about their
polluting activities. Whether this will in fact be borne out in discovery is anybody’s

guess. But for now, it’s enough to say that it is certainly plausible. As a result, it would
be premature to dismiss the plaintiffs’ negligence claims based on a failure-to-warn
21
theory. With the benefit of a more fulsome record after discovery has been taken,
Defendants can of course raise the argument anew at summary judgment.
DuPont further argues that the complaint fails to plausibly assert harms

proximately caused by their alleged introduction of hazardous levels of lead and “other
toxins” on their property. As I previously pointed out [see supra n.4], the plaintiffs do not
meaningfully allege a connection between their alleged injuries and any contaminant
other than lead. Because Ramirez, C.R., and Espinosa fail to allege facts clearly linking
their general categories of alleged injuries to exposure to contaminants other than lead,

any injuries allegedly caused by the introduction of those substances onto the land are
entirely speculative. Accordingly, the plaintiffs’ negligence claims based on “other
toxins,” aside from lead, are dismissed with prejudice for failure to plead causation.
However, these plaintiffs do adequately allege that DuPont and Hammond Lead
proximately caused their alleged injuries based on ingestion of hazardous levels of lead.
Under Indiana law, proximate causation requires both “factual causation” and “legal

causation.” Fifth Third Bank v. CSX Corp., 306 F. Supp. 2d 841, 853 (N.D. Ind. 2004). See
also Johnson v. Wal-Mart Stores, Inc., 588 F.3d 439, 445 (7th Cir. 2009) (“Courts remain
entirely free to dismiss a claim . . . where the pleadings do not permit a reasonable
inference of proximate cause.”). As courts in this case and elsewhere across this district
have repeatedly noted, it is not necessary for Defendants’ contamination to be “the

proximate cause, but only a proximate cause, of the Plaintiffs’ injuries to succeed on a
claim of negligence.” See Rolan v. Atl. Richfield Co., 2017 WL 3191791, at *18 (N.D. Ind.
22
July 26, 2017) (citing Carey v. Ind. Physical Therapy, Inc., 926 N.E.2d 1126, 1129 (Ind. Ct.
App. 2010)) (finding resolution of causation issue required “a more factually intensive
inquiry” inappropriate for resolution at the pleadings). [See DE 157 at 12–13.]

Defendants take issue with the lack of detail linking their alleged pollution
decades ago to these plaintiffs’ present physical injuries caused by lead exposure.
DuPont notes that Ramirez, C.R., and Espinosa repeatedly allege that they ingested lead
that was introduced onto their land by Defendants. But they point to allegations in
tension with the view that their conduct proximately caused the plaintiffs’ alleged

exposure to contaminants and resulting injuries. [DE 234 at 19–21.] In that vein, DuPont
points out that while the complaint alleges the City of East Chicago offered lead testing
to all West Calumet residents, Plaintiffs do not claim that they took advantage of this
testing or were found to have elevated lead levels as a result of such testing. Id. at 20.
Because they have had “four years” to “allege individualized facts on exposure,” the
argument goes, the negligence claims do not plausibly plead injuries caused by DuPont’s

alleged conduct and must fail for lack of causation. Id.
The story Plaintiffs tell strikes me as entirely plausible, even if Defendants would
prefer additional factual allegations more specifically tying their alleged lead
contamination to Plaintiffs’ claimed injuries. At this stage, the allegations put Defendants
on notice of Plaintiffs’ theory of harm, and that is all Rule 8(a) requires. In sum,

following the lead of fellow courts in this district evaluating virtually identical claims, I

23
decline to dismiss Plaintiffs’ negligence claims based on exposure to hazardous levels of
lead due to a failure to adequately plead causation.
In sum, Ramirez, C.R., and Espinosa will be permitted to proceed on their

negligence claims against DuPont and Hammond Lead. But because the facts properly
before me reflect that Atlantic Richfield did not owe a common law duty of care to
Ramirez and C.R., I will dismiss the negligence claim asserted against it.
III. NIED Claims
Next, I’ll address Plaintiffs’ claims for negligent infliction of emotional distress,

which dovetail with their negligence claims. Judge Van Bokkelen dismissed Plaintiffs’
initial NIED claims, finding that no such claim exists under Indiana law unless
accompanied by a properly pled, ordinary negligence claim. [DE 157 at 15.] While not all
Plaintiffs have a viable negligence claim, all of them nevertheless seek to re-assert NIED
claims. [DE 224 at 29.] They claim that Defendants’ contamination has caused them to
come in contact with contaminants on their properties, and as a result they have suffered

emotional distress from the fear that they or their family members could contract an
illness in the future.
In Spangler v. Bechtel, the Indiana Supreme Court observed, “The right to seek
damages for emotional distress in actions for negligence often referred to as actions for
negligent infliction of emotional distress, is carefully circumscribed under Indiana

jurisprudence.” 958 N.E.2d 458, 466 (Ind. 2011) (emphasis added). Indiana law had
“never permitted . . . an action seeking damages for emotional distress predicated upon
24
a breach of an alleged duty not to inflict emotional injury on another,” and such
“independent, stand-alone actions for negligent infliction of emotional distress are not
cognizable.” Id.

As Judge Van Bokkelen previously observed, if Spangler controls, the result is
straightforward – only those named plaintiffs with cognizable negligence claims based
on their present physical injuries may also pursue NIED claims against Defendants. See,
e.g., Vestal v. Heart of CarDon, LLC, 2018 WL 3008638, at *12 (S.D. Ind. June 15, 2018)
(applying Spangler) (NIED “is not a stand-alone cause of action, but instead is permitted .

. . where the ‘defendant’s breach of a legal duty to the plaintiff’ causes a ‘direct impact’
upon the plaintiff”). But, again, things are not always so simple. As highlighted by Judge
Kolar in granting Plaintiffs leave to amend, he believed Indiana law governing NIED
claims may have been altered by the Indiana Supreme Court’s decision in Community
Health Network, Inc. v. McKenzie, 185 N.E.3d 368 (Ind. 2022). To be more specific about it,
Judge Kolar was not “certain” about whether Community Health changed the landscape

on NIED claims. To his credit, and out of an abundance of caution, Judge Kolar allowed
the complaint to be amended so the validity of the standalone NIED claims could be
fully briefed for my consideration on the pending motions to dismiss.
In Community Health, the plaintiffs sued a healthcare provider for negligence
based on an employee accessing their medical records without authorization. The

plaintiffs’ negligence claims sounded in theories of direct liability for negligent
supervision, training, and retention, as well as vicarious liability. They did not allege a
25
physical impact or injury – just that they suffered emotional distress as a result of the
defendant’s negligence with respect to its handling of their medical records. Id. at 379.
The Court noted that under Spangler, “emotional-distress damages are recoverable in

negligence-based claims only when a party can satisfy (1) the modified-impact rule or
(2) the bystander rule.” Id. (citing 958 N.E.2d at 466, 471).
I can set the bystander rule aside for our purposes. Under that rule, a standalone
NIED claim is permitted absent a direct physical impact on the plaintiff only if the
plaintiff has “witnessed or come to the scene soon after the death or severe injury of

certain classes of relatives.” Spangler, 958 N.E.2d at 467. Suppose a mother is at a bus
stop with her child when she witnesses her child being run over by an inattentive
motorist who is texting and driving. The mother in that case would have a viable NIED
claim as a bystander. There is no plausible claim that any of the plaintiffs in this case can
be reasonably called bystanders.
But what about the other theory of negligent infliction of emotional distress – the

modified-impact rule? Community Health itself provides little analysis of the rule, beyond
noting that Spangler requires that the plaintiff “personally sustained a physical impact,”
in addition to emotional distress damages. 185 N.E.3d at 379 (citing 958 N.E.2d at 467).
The Court found in straightforward fashion that the “undisputed facts establish[ed] that
[the plaintiffs] suffered no physical impact” as a result of the misuse of their private

medical records.

26
Digging a little deeper, the Supreme Court has explained that this rule “is known
as the ‘impact rule’ because of the requirement that there be some physical impact on the
plaintiff before recovery for mental trauma will be allowed,” and it has been the law of

the land in Indiana for over “one hundred years.” Shuamber v. Henderson, 579 N.E.2d 452,
454 (Ind. 1991) (citing Kalen v. Terre Haute & I.R.R. Co., 47 N.E. 694 (Ind. Ct. App. 1897)).
“The rule, as applied in Indiana, has three elements: (1) an impact on the plaintiff;
(2) which causes physical injury to the plaintiff; (3) which physical injury, in turn, causes
the emotional distress.” Id. (citing Boston v. Chesapeake & O. Ry., 61 N.E.2d 326, 327 (Ind.

1945)).
Atlantic Coast Airlines v. Cook, 857 N.E.2d 989 (Ind. 2006) is a useful illustration
cited favorably by the Court in Spangler. In Cook, the plaintiffs were involved in a
harrowing incident on a aircraft shortly after the 9/11 tragedy. Essentially, the plaintiffs
contended that the airline (and others) were negligent in allowing another passenger to
board the aircraft who later engaged in menacing behavior in flight. That passenger

marched up and down the aisle, threatened others on board and perpetually smoked
cigarettes despite rules to the contrary. 857 N.E.2d at 991–92. The plaintiffs were
justifiably terrified by the incident. They argued that breathing smoke from a lit cigarette
and experiencing vibrations from stomping feet caused a direct physical impact, as well
as a “constructive” impact “by virtue of the physical effects on the [plaintiffs’] vital body

functions,” like breathing, heart rate, and acuteness of their senses. Id. at 998.

27
With this backdrop, the Court examined case law on the physical impact
requirement, id. at 998–99, and concluded that “constructive impact” in the form of
“physical changes” can satisfy the rule. However, the plaintiffs merely alleged “what can

best be described as the human body’s natural response to fear and anxiety,” which fell
short of a “physical change” like, for example, “the destruction of healthy lung tissue” as
a result of a physician’s failure to diagnose a plaintiff’s lung cancer. Id. at 998 (citing
Alexander v. Scheid, 726 N.E.2d 272, 284 (Ind. 2000) (holding that patient suffering from
the destruction of healthy lung tissue due to physician’s failure to diagnose cancer was

sufficient for negligent infliction of emotional distress)).
The Court in Cook then considered whether smelling cigarette smoke and feeling
floor vibrations could form a direct physical impact. 857 N.E.2d at 999. While the Court
noted plaintiffs’ theory “at the very least . . . stretches the outer limits of the impact
requirement,” it accepted that plaintiffs may experience sensations related to exposure to
smoke and vibrations that “may be characterized as physical impact,” even if “certainly

very ‘slight,’” and went on to consider whether plaintiffs’ alleged “mental anguish is
‘not likely speculative, exaggerated, fictitious, or unforeseeable.’” Id. (quoting Bader v.
Johnson, 732 N.E.2d 1212, 1221 (Ind. 2000)). The evidence suggested plaintiffs’ fear and
anxiety were real but transitory, and they never sought medical treatment for their
alleged impacts. The Court accordingly concluded “the physical impact in this case was

slight to nonexistent,” and “speculative,” so “allowing an emotional distress claim to

28
proceed based on . . . lingering mental anguish would essentially abrogate the
requirements of Indiana’s modified impact rule.” Id. at 1000.
As I see it, the takeaway from Cook is just how skeptical the Indiana Supreme

Court is of standalone NIED claims. The Court acknowledged that claims based on
emotional distress alone face an uphill climb, and to the extent a plaintiff can assert a
“direct impact” based on emotional distress, such a claim “stretches the outer limits of
the impact requirement.” 857 N.E.2d at 999. Adding to this, courts evaluating similar
claims involving asbestos exposure have concluded that merely asserting the

“possibility” that an individual was exposed to asbestos and that exposure “may or may
not produce physical injury” do not satisfy the modified-impact rule; but that actual
exposure could form a direct impact under the rule. Adams v. Clean Air Sys., Inc., 586
N.E.2d 940, 942 (Ind. Ct. App. 1992). See also Dollar Inn, Inc. v. Slone, 695 N.E.2d 185, 189
(1998) (construing Adams).
All of this brings me back to Community Health, and whether it worked a change

in the law that permits all of the named plaintiffs to move forward with NIED claims,
regardless of whether they allege underlying physical injuries sufficient to state ordinary
negligence claims. I don’t think Community Health does anything of the sort. The case
does not even meaningfully evaluate the “physical impact” requirement of the modified-
impact rule and, in all events, concludes in a single sentence that, under Spangler, the

plaintiffs did not suffer any “physical impact themselves” as a result of the misuse of
their medical records. 185 N.E.3d at 379. To suggest that Community Health somehow
29
undermines dozens of earlier cases—cases that have been around for decades—that
repeatedly explained and enforced the modified impact rule with respect to NIED claims
would be a bridge way too far.

And indeed, the few courts that have evaluated the issue after Community Health
have reaffirmed the proposition NIED claims “are subject to the modified-impact rule”
which requires the plaintiff to have sustained a physical impact before bringing any
NIED claim. Fox v. Franciscan All., Inc., 204 N.E.3d 320, 327 (Ind. Ct. App. 2023) (granting
summary judgment on negligence claims, including NIED claim, based on defendant’s

invasion of plaintiffs’ privacy, holding that “[l]oss of privacy does not consist of a
physical impact [under Community Health], and it is undisputed that Plaintiffs here did
not sustain physical impacts”).
In sum, in the context of the authority that precedes it, it seems clear that
Community Health is simply an application of the modified-impact rule, not a meaningful
change in the law. As such, I see no reason to depart from the reasoning of Judge Van

Bokkelen’s prior order dismissing Plaintiffs’ NIED claims to the extent they failed to
adequately allege a standalone negligence claim. [DE 157 at 15.]
Accordingly, only Ramirez, C.R., and Espinosa—who, as previously explained,
are the only named plaintiffs with viable “ordinary” negligence claims—may proceed
with their NIED claims against DuPont and Hammond Lead. All of the other named

plaintiffs’ NIED claims will be dismissed with prejudice, for failure to state a claim.

30
IV. Strict Liability Claims
It’s on now to the strict liability claims. “Indiana recognizes the doctrine of strict
liability stemming from carrying on an abnormally dangerous activity.” City of

Bloomington, Ind. v. Westinghouse Elec. Corp., 891 F.2d 611, 615 (7th Cir. 1989) (citing Enos
Coal Mining Co. v. Schuchart, 243 Ind. 692, 188 N.E.2d 406 (1963)). To assess if an activity
is subject to strict liability, Indiana courts apply the standard enumerated in the
Restatement (Second) of Torts, which provides that one who carries on “an abnormally
dangerous activity is subject to liability for harm to the person, land or chattels of

another resulting from the activity, although he has exercised the utmost care to prevent
the harm,” and such liability is “limited to the kind of harm, the possibility of which
makes the activity abnormally dangerous.” Fechtman v. U.S. Steel Corp., 994 N.E.2d 1243,
1247 (Ind. Ct. App. 2013) (citing Restatement (Second) of Torts § 519 (1977)).
Courts consider six factors to evaluate if an activity is “abnormally dangerous,”
including: (1) risk of harm; (2) likely severity of that harm; (3) inability to eliminate risk

by the exercise of reasonable care; (4) extent to which the activity is not a matter of
“common usage”; (5) inappropriateness of the activity for the place where it is carried
on; and (6) the extent to which its value to the community is outweighed by its
dangerous attributes. Id. (citing Restatement (Second) of Torts § 520 (1977); Bridges v. Ky.
Stone Co., Inc., 425 N.E.2d 125, 126 (Ind.1981)). In applying these factors, I must consider

“the defendant’s activity as a whole.” The “essential question is whether the risk created
is so unusual,” either due to its “magnitude or because of the circumstances surrounding
31
it” to justify strict liability in tort. Id. at 1248–49 (quoting Erbrich Products Co., Inc. v. Wills,
509 N.E.2d 850, 856 (Ind. Ct. App. 1987); Restatement (Second) of Torts § 520 cmt. f
(1977)). This standard strikes me as amorphous and difficult to apply.

Judge Van Bokkelen previously dismissed Plaintiffs’ strict liability claims based
on the failure to sufficiently plead a present physical injury—the same issue that
doomed the majority of their negligence and NIED claims. [DE 157 at 15–16.] For his
part, Judge Kolar concluded amendment was futile for the 81 plaintiffs who failed to
plead a present physical injury and denied them leave to amend. While noting that “case

law can be read to suggest that the alleged activities are not abnormally dangerous as a
matter of law,” Judge Kolar granted leave for Ramirez, C.R., and Espinosa to pursue
strict liability claims based on their present physical injuries. [DE 180 at 16–19.]
Defendants renew the argument that their purported manufacturing activities are
not “abnormally dangerous” under applicable state law. Judge Van Bokkelen did not
address this independent ground for dismissal in the first round of motions to dismiss.

Having freshly reviewed the cases, I agree with Defendants that their alleged activities
were not “abnormally dangerous,” as that phrase has been construed by the state courts.
Accordingly, the strict liability claims will be dismissed.
For starters, because of how Indiana has defined what amounts to “abnormally
dangerous” behavior, it must be pointed out that the scope of strict liability is extremely

narrow. Indeed, the Seventh Circuit has observed, “Indiana courts have generally been
reluctant to impose strict liability based on the abnormally dangerous activity doctrine.”
32
Consol. Rail Corp. v. Allied Corp., 882 F.2d 254, 257 n.3 (7th Cir. 1989). In Fechtman, the
state’s Court of Appeals put it even simpler terms. Weirdly, “it appears that strict
liability for abnormally dangerous activities has been limited in Indiana to blasting and

housing wild animals in a residential area.” Fechtman, 994 N.E.2d 1250 (collecting cases).
Canvassing case law applying the relevant factors to analogous situations, I am
persuaded (counterintuitively, I must admit) that Defendant’s alleged manufacturing
activities are not “abnormally dangerous” in light of the foregoing factors. I’ll take
Fechtman at its word. Judge Kolar, for his part, identified a number of “cases in which

manufacturing processes that led to contamination,” like the one at issue in this case,
“were found not to be abnormally dangerous.” [DE 180 at 18.] Take for example Erbich
Products Company v. Wills. There, the court held that manufacturing and storing chlorine
gas was not abnormally dangerous. 509 N.E.2d at 856. The court reasoned: “If the rule
were otherwise, virtually any commercial or industrial activity involving substances
which are dangerous only in the abstract automatically would be deemed as abnormally

dangerous. This result would be intolerable.” Id. (emphasis added).
Moreover, to the extent the defendant could limit risks from the disputed activity
through the exercise of reasonable care, the court in Erbich held that strict liability does
not attach. Id. Accord Dow Chem. Co. v. Ebling, 723 N.E.2d 881, 909 (Ind. Ct. App. 2000)
(application of pesticides not ultra-hazardous activity subject to strict liability). Indeed,

the Seventh Circuit has applied Erbich in holding that a defendant’s handling of PCBs (a
set of highly carcinogenic chemical compounds, formerly used in industrial and
33
consumer products) is not abnormally dangerous activity—in part because risks
associated with the chemicals’ disposal could have been limited by the defendant’s
exercise of reasonable care. Westinghouse Elec. Corp., 891 F.2d at 616–17 (“[C]onsistent

with Erbrich Products, the manufacture of PCBs cannot be considered abnormally
dangerous under Indiana law since the risks therefrom could have been limited by
Westinghouse's reasonable care.”).
Here, the complaint asserts that each defendant “manufactured, processed,
stored, and/or used materials on its property that could and did result in the release of

lead and other hazardous substances impacting persons and property on and around the
[Superfund Site],” and that the “manufacture, processing, storage, and use of materials
resulting in the release of lead and other hazardous particles . . . constitutes abnormally
dangerous and ultrahazardous activity.” [DE 224 at 21–23.] Atlantic Richfield, DuPont,
and Hammond Lead are all alleged to have historically manufactured white lead, lead
arsenate insecticide, other unidentified “lead substances,” and/or zinc oxide on their

properties, and to have released these contaminants during their production processes.
Id., ¶¶ 51–56 (DuPont), 62–66 (Atlantic Richfield), 67–71 (Hammond Lead). The details
about these three defendants’ polluting activities are far less detailed than those
pertaining to U.S. Smelter – which notably has not sought to dismiss the claims. See id.,
¶¶ 32–46 (detailing U.S. Smelter’s operation of a lead smelter on its property and

stockpiling of “waste containing hazardous contaminants from its blast-furnace” and the

34
spreading of “waste over an adjoining 21 acres of wetlands, which leaked and/or spilled
contaminants into the surrounding area”).
To save their strict liability claims, Plaintiffs try to “incorporate their arguments

from their brief in opposition to U.S. Smelter’s motion to dismiss the first amended
complaint.” [See DE 243 at 3 (citing DE 132 at 1–4).] But that line of argument is beside
the point. There are no specific allegations in the Second Amended Complaint
supporting the inference that Atlantic Richfield, DuPont, and Hammond Lead were
engaged in “dumping toxic waste” with “the very objective . . . to release it into the

environment,” as Plaintiffs argue in their opposition. See id. Plaintiffs seem to
acknowledge this discontinuity in their brief, noting that they “may not have alleged the
same level of detail with regard [to the] strict liability of Atlantic Richfield Company,
DuPont, and the Hammond Group as they did with U.S. Smelter.” In any case, they feel
entitled to figure it all out in discovery. Id. at 3–4.
I find this line of argument a little befuddling. Plaintiffs have provided threadbare

assertions about Defendants’ mere manufacturing of products involving lead and arsenic.
In their brief, they ask me to pretend that they have actually claimed those entities
disposed of toxic waste adjacent to a residential neighborhood – which they argue
constitutes “abnormally dangerous” activity, at least for pleading purposes, under the
six-prong factor test. Then, they say, with the benefit of discovery into all four groups of

corporate defendants’ activities, they will be able to tell whether Atlantic Richfield,
DuPont, and Hammond Lead “engaged in the particular type of disposal activity, in a
35
residential area, that gives rise to strict liability.” Id. at 4. That is not how it works in our
notice pleading regime. A party’s well-pled allegations must provide an opponent fair
notice of the basis for its legal claims, so as to enable a defense on the merits – not a set of

placeholders filled in after a fishing expedition.
In sum, the complaint does not specifically allege any “abnormally dangerous”
activity based on the defendants’ manufacture of products involving lead and arsenic on
their properties many decades ago. Nor do Plaintiffs claim that Atlantic Richfield,
DuPont, or Hammond Lead stockpiled or spread waste over land and waterways

adjacent to residential neighborhoods, in contrast to its allegations against U.S. Smelter.
To the extent those alternative allegations form a basis for “abnormally dangerous”
activity under the applicable factors, they are not raised in the complaint as to Atlantic
Richfield, DuPont, or Hammond Lead, and I decline to allow Plaintiffs to amend their
theory again for the first time in an opposition brief. Accordingly, as to these three
defendants, the strict liability claims will be dismissed with prejudice.

V. Nuisance Claims
Finally, the Ramirez plaintiffs assert a nuisance claim against DuPont only.
[DE 224 at 28–29.] Recall that these four plaintiffs allege they presently reside in a
private, single family home on the Superfund Site. While the plant closed in 1949, they
claim that contaminated groundwater continues to migrate from DuPont’s property to

their residence. Judge Kolar granted them leave to amend to assert a private nuisance
claim, noting that courts have had “differing interpretations within this district as to
36
whether a nuisance claim can lie when a defendant’s polluting conduct has ceased, but
the nuisance has not.” [DE 180 at 20–22.]
Indiana Code § 32-30-6-6 defines nuisance as “[w]hatever is: (1) injurious to

health; (2) indecent; (3) offensive to the sense; or (4) an obstruction to the free use of
property; so as essentially to interfere with the comfortable enjoyment of life or
property,” and provides “the subject of an action.” Subsection -7 states, “If a proper case
is made, the nuisance may be enjoined or abated and damages recovered for the
nuisance.” Ind. Code § 32-30-6-7. As explained by Judge DeGuilio, in Hostetler v. Johnson

Controls Inc.:
The plain language of the statute contemplates an ongoing/present
offending activity or condition. Importantly, subsection (8) allows for
nuisance to be “enjoined or abated and damages recovered for the
nuisance.” In other words, this subsection does not provide for damages
alone as would happen in a case of an activity or condition that had
ceased; rather damages go hand-in-hand with enjoiner and abatement,
further suggesting that the statute contemplates a present offending
activity or condition. [...] Indiana cases are consistent with this
interpretation.
2021 WL 5087261, at *13 (N.D. Ind. Nov. 2, 2021). See also Ka v. City of Indianapolis, 954
N.E.2d 974, 981 (Ind. Ct. App. 2011) (“A nuisance claim generally contemplates an
action that is designed to cease or lessen the defendant’s continued offensive behavior”
(quoting KB Home, 928 N.E.2d at 307)).
Here, Plaintiffs seek damages, attorney’s fees, and costs associated with harms
incurred due to DuPont’s alleged wrongdoing, but they do not seek abatement or the
enjoinment of any ongoing conduct. [DE 224 at 29.] DuPont argues that this “dooms”
37
the nuisance claim [DE 234 at 26]; but the case it cites for that proposition (Hostetler)
states that the plaintiffs sought only “compensatory and punitive damages,” see id. at *1,
and the nuisance claim was allowed to proceed, id. at *13–14.

The thrust of Plaintiffs’ nuisance claim is that DuPont, despite closing down its
operations and contributing to remediation efforts along with Atlantic Richfield and the
state and federal governments, continues to fail to control hazardous substances
emanating from its property, primarily through the groundwater. The claims thus
mirror those considered in one of the parallel cases proceeding in this district, Alvarez v.

Atlantic Richfield Company et al.
In Alvarez, while the court acknowledged that DuPont is no longer generating
contaminants on the property, Plaintiffs adequately alleged ongoing behavior that the
Court can enjoin – they claimed that DuPont was permitting previously generated
contaminants to migrate to their properties. Alvarez v. Atl. Richfield Co., 2021 WL
3161461, at *7 (N.D. Ind. July 26, 2021). Moreover, as in Alvarez, Plaintiffs have

adequately alleged that this ongoing migration of previously generated contaminants to
their properties has resulted in tangible harms, specifically in the contamination of the
soil, groundwater, and interiors of their homes. Separately, they allege health risks and
specific health conditions developed as a result of exposure to the contaminants DuPont
produced and fails to abate. As in Alvarez, that is “more than ‘mere annoyance and

disruption,’” and sufficiently tangible harm to state a private nuisance claim. Id. at *8
(citing Baker v. Westinghouse Elec. Corp., 70 F.3d 951, 955 (7th Cir. 1995)).
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From one angle, this all suggests Plaintiffs have a viable nuisance claim. But in its
motion, DuPont asserts that the claim must fail, because it no longer owns the property
from which the pollution allegedly emanates. [DE 234 at 20; see DE 235-2 (2015 Limited

Warranty Deed transferring ownership from DuPont to Chemours); DE 235-3 (2018
Limited Warranty Deed transferring ownership from Chemours to East Chicago
Gateway Partners, LLC).] See Alvarez, 2021 WL 3161461, at *7. In Alvarez, Judge Van
Bokkelen dismissed nuisance claims against U.S. Smelter and Atlantic Richfield because
they “owned their respective relevant properties in the past, not currently,” and state

law contemplates a nuisance claim as “an action . . . designed to cease or lessen the
defendant’s continued offensive behavior.” Id. (citing KB Home, 928 N.E.2d at 307; Rolan,
2017 WL 3191791, at *15). However, he declined to dismiss nuisance claims against
DuPont because “it currently owns the relevant property and,” despite ceasing
operations, “to this day continues” to fail to control hazardous substances emanating
from the property. Id. Based on the facts reflected in the documents DuPont has

submitted, it is clear that Judge Van Bokkelen was incorrect. In other words, because
DuPont no longer owns the property at issue, they can’t abate it. Consequently, the
nuisance claim, as it did in Alvarez, must fail.
Tellingly, the plaintiffs did not respond to this argument, or any argument for
dismissal of the nuisance count, for that matter. [DE 243.] While they attempt to

incorporate by reference all arguments “on the issue of pleading negligence” from their
prior motions, they do not incorporate any arguments about nuisance claims. And as
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DuPont points out, they previously conceded that the initial complaint did not state
claims for trespass or nuisance against “all Defendants” [see DE 157 at 6], so reference to
any prior briefing cannot save their claim against DuPont. Arguments not raised in

response briefs are waived. See Johnson v. Gen. Bd. of Pension & Health Benefits of United
Methodist Church, 733 F.3d 722, 729 (7th Cir. 2013) (holding that arguments not raised in
opposition to a motion for summary judgment are waived); Laborers’ Int’l Union of N.
Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999) (same). Because the Plaintiffs have not
meaningfully responded to DuPont’s arguments for dismissal, it appears they have

abandoned it. Therefore, it will be dismissed with prejudice.
ACCORDINGLY:
For the reasons explained in this opinion and order, DuPont’s and Atlantic
Richfield’s unopposed motions for judicial notice [DE 235; DE 238] are GRANTED. The
motions to dismiss the Second Amended Complaint [DE 224] filed by Defendants
Atlantic Richfield [DE 236], DuPont [DE 231], and Hammond Lead [228] are

GRANTED IN PART and DENIED IN PART, as follows:
Counts I and II, asserting strict liability claims against Atlantic Richfield, DuPont,
and Hammond Lead, are DISMISSED WITH PREJUDICE for failure to state a claim.
Count I remains pending against Defendant U.S. Smelter.
Counts IV and VII, asserting negligence and negligent infliction of emotional

distress claims against Atlantic Richfield, are DISMISSED WITH PREJUDICE for
failure to state a claim.
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Count V, asserting a private nuisance claim against DuPont, is DISMISSED
WITH PREJUDICE for failure to state a claim.
Plaintiffs Minerva Ramirez, C.R., and Liduvina Espinosa—who, as previously

explained, are the only named plaintiffs with viable “ordinary” negligence claims—may
proceed with their NIED claims against DuPont and Hammond Lead (Count VI). As to
all other named Plaintiffs, Count VI, asserting claims for negligent infliction of
emotional distress on behalf of all Plaintiffs against DuPont and Hammond Lead, is
DISMISSED WITH PREJUDICE for failure to state a claim. Count VI remains pending

against Defendant U.S. Smelter.
In all other respects, the motions to dismiss [DE 228; DE 231; DE 236] are
DENIED.
SO ORDERED.
ENTERED: September 29, 2023.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10164493. Public record. Not legal advice.