WYMAN v. UNITED STATES SURGICAL CORPORATION

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

KENNETH F. WYMAN, JR. et al., )

)

Plaintiffs, )

)

v. ) 1:18-cv-00095-JAW

)

UNITED STATES SURGICAL )

CORPORATION, et al., )

)

Defendants. )

ORDER ON DEFENDANTS’ CROSS-MOTION FOR PARTIAL SUMMARY

JUDGMENT

A lobster and crab fisherman brings claims based on harm suffered as a result

of the long-ago disposal of tons of mercury into the Penobscot River. The successor to

the corporate entity which engaged in this disposal seeks summary judgment on the

permanent and continuing nuisance and permanent and continuing strict liability

causes of action, arguing that they are barred by the applicable six-year statute of

limitations. Because the Court concludes that the permanent nuisance and strict

liability claims accrued on the date of the last tortious disposal and these claims are

therefore barred by the statute of limitations, the Court grants summary judgment

on these claims. Because the Court concludes that the statutory continuing strict

liability claim also accrued on the date of the last tortious disposal, the Court grants

summary judgment on this claim.

However, because the Court concludes that there is a genuine dispute over

whether the alleged nuisance caused by the dumping of mercury is readily abatable,

the Court denies summary judgment on the continuing nuisance claim and the

common law continuing strict liability claim.

I. PROCEDURAL HISTORY

On March 5, 2018, Kenneth F. Wyman, Jr. and F/V Megan K II LLC

(collectively Mr. Wyman) filed a complaint against United States Surgical

Corporation and its wholly owned subsidiary Mallinckrodt US LLC (collectively

Mallinckrodt). Compl. (ECF No. 1); Mallinckrodt US LLC’s Corporate Disclosure

Statement (ECF No. 13). On May 14, 2018, Mallinckrodt filed a partial motion to

dismiss for failure to state a claim. Defs.’ Partial Mot. to Dismiss (ECF No. 9). On

May 30, 2018, Mr. Wyman filed a response to Mallinckrodt’s motion to dismiss. Pls.’

Obj. to Defs.’ Partial Mot. to Dismiss (ECF No. 16). On June 13, 2018, Mallinckrodt

filed a reply to Mr. Wyman’s objection. Defs.’ Reply in Supp. of Partial Mot. to Dismiss

(ECF No. 22).

On June 15, 2018, Mallinckrodt answered the Complaint, Defs.’ Joint Answer

and Affirmative Defenses (ECF No. 23), and on June 27, 2018, Mr. Wyman moved to

amend the Complaint. Pls.’ Mot. to Amend Compl. (Corrected) (ECF No. 25). On July

23, 2018, a Magistrate Judge granted Mr. Wyman’s motion to amend without

objection, Order Granting Without Obj. Mot. to Amend (ECF No. 30), and Mr. Wyman

filed his amended complaint that same day. First Am. Compl. (ECF No. 31). On

August 6, 2018, Mallinckrodt answered the First Amended Complaint. Defs.’ Joint

Answer to First Am. Compl. and Affirmative Defenses (ECF No. 37). On March 6,

2019, the Court denied Mallinckrodt’s Partial Motion to Dismiss. Order Denying

Defs.’ Partial Mot. to Dismiss (ECF No. 50).

On March 7, 2019, Mr. Wyman filed a motion for partial summary judgment,

Pls.’ Mot. in Supp. of Mot. for Partial Summ. J. on Liability and Causation for Counts

I-II and III-IV (ECF No. 52), and a statement of material facts. Pls.’ Statement of

Material Facts as to Which There Is No Genuine Dispute (ECF No. 54) (PSMF). On

April 26, 2019, Mallinckrodt filed a response to Mr. Wyman’s motion for partial

summary judgment, Defs.’ Opp’n to Pls.’ Mot. for Partial Summ. J. (ECF No. 66), a

response to Mr. Wyman’s statement of material facts, and a statement of additional

material facts. Defs.’ Opposing Statement of Material Facts and Statement of

Additional Material Facts (ECF No. 67) (for Mallinckrodt’s opposing statement of

material facts, DRPSMF; for Mallinckrodt’s statement of additional material facts,

DSAMF). On June 7, 2019, Mr. Wyman filed a reply to Mallinckrodt’s response, Pls.’

Reply to Defs.’ Opp’n to Pls.’ Mot. for Partial Summ. J. (ECF No. 74), and a response

to Mallinckrodt’s statement of additional material facts. Pls.’ Resp. to Defs.’

Statement of Additional Material Facts (ECF No. 75). On October 16, 2019, Mr.

Wyman filed an amended reply to Mallinckrodt’s statement of additional material

facts. Pls.’ Am. Resps. to Defs.’ Statement of Additional Material Facts (ECF No. 89)

(PRDSAMF).

Also, on April 26, 2019, Mallinckrodt filed three additional documents: a

motion pursuant to Federal Rule of Civil Procedure 56(d) to defer or deny summary

judgment, Defs.’ Rule 56(d) Mot. to Deny or Defer Pls.’ Mot. for Partial Summ. J. (ECF

No. 63); a cross-motion for partial summary judgment, Defs.’ Cross-Mot. for Partial

Summ. J. (ECF No. 64) (Defs.’ Mot.); and a statement of material facts in support of

its cross-motion for partial summary judgment. Statement of Material Facts in Supp.

of Defs.’ Cross-Mot. for Partial Summ. J. (ECF No. 65) (DSMF). On June 7, 2019, Mr.

Wyman filed three documents: an opposition to Mallinckrodt’s Rule 56(d) motion, Pls.’

Opp’n to Defs.’ Rule 56(d) Mot. (ECF No. 70); an opposition to Mallinckrodt’s cross-

motion for partial summary judgment, Pls.’ Opp’n to Defs.’ Cross-Mot. for Partial

Summ. J. (ECF No. 71) (Pls.’ Opp’n); and a response to Mallinckrodts’ statement of

material facts with additional material facts. Pls.’ Opposing Statement of Material

Facts and Statement of Additional Material Facts in Opp’n to Defs.’ Cross-Mot. for

Partial Summ. J. (ECF No. 72) (for Mr. Wyman’s opposing statement of material

facts, PRDSMF; for Mr. Wyman’s statement of additional material facts, PSAMF).

On July 12, 2019, Mallinckrodt filed a reply to Mr. Wyman’s response to its

Rule 56(d) motion. Reply in Supp. of Defs.’ Rule 56(d) Mot. (ECF No. 83). Also, on

that date, Mallinckrodt filed a reply to Mr. Wyman’s response to its cross-motion for

partial summary judgment, Reply in Supp. of Defs.’ Cross-Mot. for Partial Summ. J.

(ECF No. 81) (Defs.’ Reply), and a reply to Mr. Wyman’s statement of additional

material facts (DRPSAMF). Defs.’ Reply Statement of Material Facts in Supp. of

Cross-Mot. for Partial Summ. J. (ECF No. 82) (DRPSAMF).

On July 21, 2019, Mr. Wyman filed an unopposed motion for oral argument on

the pending motions, Pls. Mot. for Oral Arg. on Pending Mots. (ECF No. 84); Defs.’

Resp. to Pls.’ Mot. for Oral Arg. On Pending Mots. (ECF No. 86), which the Court

granted on July 24, 2019. Order Granting Mot. for Oral Arg./Hr’g (ECF No. 87). The

Court held oral argument on February 19, 2019. Min. Entry for Proceedings Held

Before Judge John A. Woodcock, Jr. (ECF No. 94). On April 21, 2020, the Court issued

an order denying Mr. Wyman’s motion for partial summary judgment and dismissing

as moot Mallinckrodt’s Rule 56(d) motion. Order on Pls.’ Mot. for Partial Summ. J.

(ECF No. 96).

II. FACTUAL BACKGROUND1

A. Kenneth F. Wyman, Jr. and Mercury Discharges into the

Penobscot River

Mr. Wyman has held a commercial fishing license since 1987, which has

authorized him to harvest lobster and crabs from Lobster Management Zones C and

D. DSMF ¶¶ 1-2; PRDSMF ¶¶ 1-2. Although Lobster Management Zones were not

established until 1997, Mr. Wyman has always fished for lobster and crabs in what

are now Zones C and D. DSMF ¶ 3; PRDSMF ¶ 3. Mr. Wyman alleges that

Mallinckrodt is responsible for mercury discharges between December of 1967 and

April of 1982 from a chlor-alkali facility in Orrington, Maine (the Orrington Plant).

DSMF ¶ 4; PRDSMF ¶ 4. In 1970, the United States Government sued the owners

and operators of the Orrington Plant (Mallinckrodt’s Predecessors); the case was

resolved by a 1972 consent decree between the United States Government and

Mallinckrodt’s Predecessors authorizing some limited discharge of mercury into the

1 The Court states the facts “in the light most hospitable to [non-movants] consistent with record

support . . ..” Mancini v. City of Providence ex rel. Lombardi, 909 F.3d 32, 37 (1st Cir. 2018) (citing

Ahern v. Shinseki, 629 F.3d 49, 51 (1st Cir. 2010); Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11,

17 (1st Cir. 2002)).

Penobscot River. DSMF ¶¶ 5-6; PRDSMF ¶¶ 5-6. In August of 1973, the United

States Environmental Protection Agency issued a discharge permit to Mallinckrodt’s

Predecessors. DSMF ¶ 7; PRDSMF ¶ 7.

B. The Maine People’s Alliance Lawsuit

In 2000, the Natural Resources Defense Council, Inc. and the Maine People’s

Alliance filed a citizen suit with docket number 1:00-cv-00069-JAW against

Mallinckrodt Inc. under the Resource Conservation and Recovery Act (RCRA), 42

U.S.C. § 6972(a)(1)(B), in the United States District Court for the District of Maine

(Federal RCRA Case). DSMF ¶ 8; PRDSMF ¶ 8. Mallinckrodt Inc. was found liable

under the RCRA in 2002 for mercury discharges at the Orrington Plant from

December 9, 1967, until April 30, 1982. DSMF ¶ 9; PRDSMF ¶ 9. During the liability

phase of the Federal RCRA Case, several individuals testified that “they do not eat

fish or shellfish from the Penobscot River or Bay because they are concerned that the

fish have dangerous levels of mercury that may harm their health.”2 DSMF ¶ 10;

PRDSMF ¶ 10. In that case, the Court found that individuals who lived on or near

the Penobscot River had suffered injuries fairly traceable to the mercury discharged

2 In support of this paragraph, Mallinckrodt quotes Judge Gene Carter’s opinion, Maine People’s

Alliance v. HoltraChem Mfg. Co., 211 F. Supp. 2d 237, 253 (D. Me. 2002). DSMF ¶ 10. Mr. Wyman

admits that Mallinckrodt accurately quoted Judge Carter’s opinion, but he interposed a qualified

response, stating that “such findings are irrelevant to this case because they describe harm to the

public at large.” PRDSMF ¶ 10. The Court regards this qualification as argument outside the scope

of the facts asserted in the statement and the Court disregards it as violative of District of Maine Local

Rule 56(c). See Michaud v. Calais Reg’l Hosp., No. 1:15-cv-359-NT, 2017 WL 902133, at *1 n.1 (D. Me.

Mar. 7, 2017) (noting that “qualifications” that exceed the scope of the original statement are

appropriately presented as additional facts, rather than qualifications).

Furthermore, Mr. Wyman’s qualified response contradicts his legal position that the statute

of limitations on the nuisance claim did not begin to run until the permanency of the nuisance would

have become known to the reasonable person. Pls.’ Opp’n at 12-13. When the public at large would

have become concerned about the mercury levels of the fish in the Penobscot River is relevant to this

legal issue. The Court declines to accept Mr. Wyman’s qualified response.

from the Orrington Plant.3 DSMF ¶ 11; PRDSMF ¶ 11. The Court also found that

one witness’ injury included disruptions of her plans to harvest blue mussels to

supplement her income and diet.4 DSMF ¶ 12; PRDSMF ¶ 12.

In November of 2003, the Court appointed a study panel (Study Panel) to

conduct the Penobscot River Mercury Study (PRMS), a two-phase study of mercury

in the Penobscot River. DSMF ¶ 13; PRDSMF ¶ 13; PSAMF ¶ 1; DRPSAMF ¶ 1. The

Study Panel’s original charge included investigation into whether it was feasible to

remediate the harm caused by mercury contamination in the Penobscot River and

Bay system south of the Orrington Plant. DSMF ¶ 14; PRDSMF ¶ 14. In January of

2008, the Court ordered the Study Panel to proceed to its second phase (Phase II

Study) to address whether it was necessary and feasible to ameliorate mercury and

the methylation of mercury in the Penobscot River by means that would likely exceed

the benefits of allowing the natural attenuation processes of the river to continue and,

if so, what reasonable human processes would accomplish that end. DSMF ¶ 15;

PRDSMF ¶ 15. However, at the conclusion of the Phase II Study, the feasibility of

ameliorating mercury contamination in the Penobscot River and Bay remained an

open question and the Court ordered that an engineering firm be appointed to

investigate the feasibility of potential remedies to the mercury contamination. DSMF

¶¶ 16-17; PRDSMF ¶¶ 16-17.

3 In attempting to qualify paragraph 11 of Mallinckrodt’s statement of material facts, Mr.

Wyman refers to his qualification of Mallinckrodt’s paragraph 10. PRDSMF ¶ 11. The Court

disregards this qualification for the reasons expressed in footnote 2, supra.

4 In attempting to qualify Mallinckrodt’s paragraph 12, Mr. Wyman refers to his qualification

of paragraph 10 of Mallinckrodt’s statement of material facts. PRDSMF ¶ 12. The Court disregards

this qualification for the reasons expressed in footnote 2, supra.

C. The Maine Department of Marine Resources’ Closure Orders

Upon receiving the Phase II Study, the Maine Department of Marine

Resources (Maine DMR) reviewed the data concerning mercury levels in lobsters and

crabs, which indicated that these levels might be above the Maine Center for Disease

Control’s (Maine CDC) advisory Fish Tissue Action Levels (FTALs), warranting a

consumption advisory for sensitive populations.5 PSAMF ¶ 2; DRPSAMF ¶ 2. The

Maine DMR then requested analysis of this data by the state toxicologist. PSAMF ¶

3; DRPSAMF ¶ 3; PSMF ¶ 74; DRPSMF ¶ 74. Based on this analysis, the Maine

DMR closed the area from Wilson Point to the Fort Point Lighthouse on Cape Jellison

to lobster and crab fishing to protect the public health due to the risk of mercury

contamination in lobsters and crabs.6 PSAMF ¶ 4; DRPSAMF ¶ 4; PSMF ¶ 75;

5 Paragraph 2 of Mr. Wyman’s statement of additional material facts reads:

Upon receipt of the [Penobscot River Mercury Study], the Maine [DMR] reviewed the

data concerning mercury levels in lobsters and crabs indicating that they may have

levels that exceed the Maine [CDC] Fish Tissue Action Levels warranting a

consumption advisory for sensitive populations.

PSAMF ¶ 2.

Mallinckrodt qualifies its response to this paragraph, pointing out that the Maine DMR only

found a consumption advisory warranted for the most sensitive populations and that the FTAL is only

“a guide and does not automatically trigger a consumption advisory or other action.” DRPSAMF ¶ 2;

DRPSMF ¶ 73. The Court reviewed Mallinckrodt’s qualification about sensitive populations and

rejects it because additional paragraph two states that the Maine DMR action warranted “a

consumption advisory for sensitive populations.” PSAMF ¶ 2. This language is consistent with the

Maine Bureau of Health, Derivation of Action Levels for Setting Consumption Fish Consumption

(updated 2/20/01), which Mr. Wyman cites in support of his assertion. The Court does, however, add

the word “advisory” in its description of the FTAL in response to Mallinckrodt’s qualification.

Mallinckrodt also objected, asserting numerous additional facts. DRPSAMF ¶ 2. The Court

regards the remainder of this qualification as argument outside the scope of the facts asserted in the

statement and disregards it for the reasons expressed in footnote 2, supra.

6 Mallinckrodt attempts to qualify additional paragraph 4, asserting that protection of public

health was only one of Maine DMR’s reasons for closing this area and denying that consumption of

lobster or crab from the closed area posed an actual public health risk. DRPSAMF ¶ 4; DRPSMF ¶ 75.

The Maine DMR’s Basis Statement reads: “The Commissioner adopts this emergency rulemaking in

order to protect public health due to the risk of mercury contamination in lobsters and crabs found in

the mouth of the Penobscot River . . ..” PSAMF ¶ 4; PSMF ¶ 75; Ex. 19, Attach. 9, Ex. 28: Notice of

Rulemaking Adoption for the First Closure, Dated Feb. 22, 2014 (Emergency Rule) at 6 (Maine DMR

Basis Statement). This language supports paragraph 75 of Mr. Wyman’s statement of material facts

DRPSMF ¶ 75. This closure first occurred on February 22, 2014, and the Maine DMR

made the closure permanent on May 19, 2014. PSAMF ¶ 4; DRPSAMF ¶ 4.

D. The Closure Orders and Kenneth F. Wyman, Jr.

After this closure, the Maine DMR sent a letter to Mr. Wyman as a lobster

license holder due to his proximity to the closed area which stated that the closure

would have “a significant impact to the fishermen who fished this area” and that

“their sacrifice would benefit the entire fishery by protecting the brand of Maine

lobster.”7 PSAMF ¶ 5; DRPSAMF ¶ 5; PSMF ¶ 81; DRPSMF ¶ 81; Ex. 31: Letter from

MDMR Commissioner Keliher Dated March 4, 2014 at 3 (ECF No. 59) (Keliher Letter).

Additionally, the Maine DMR and Maine CDC initiated a two-year independent

sampling study to confirm the results of the Phase II Study; one year of the results

from this study are contained in the 2014 Sampling Report.8 PSAMF ¶ 6; DRPSAMF

and paragraph 4 of his statement of additional material facts and the Court rejects Mallinckrodt’s

qualified response.

The Court regards Mallinckrodt’s denial of an actual public health risk qualification as

argument outside the scope of the facts asserted in the statement and disregards it for the reasons

expressed in footnote 2, supra.

7 Paragraph 5 of Mr. Wyman’s statement of additional material facts reads:

After the first closure, MDMR sent a letter, dated March 4, 2014, to Plaintiff Kenneth

Wyman acknowledging that the closure would have a “significant impact” on him

because of his harvesting in the closed area, that he would likely suffer harm from the

closure and that his “sacrifice” would benefit the entire fishery.

PSAMF ¶ 5 (citing PSMF ¶ 81).

Mallinckrodt interposed a qualified response to additional paragraph 5, contending that the

letter Mr. Wyman references made no conclusions about him individually and was sent to him only

because of his proximity to the closed area. DRPSAMF ¶ 5. Additionally, Mallinckrodt points out that

the letter does not state that fishermen would likely suffer from the closure. DRPSMF ¶ 81.

The Court reviewed the cited portions of the record and agrees in part with Mallinckrodt. The

Court alters additional paragraph 5 to accurately reflect the content of the Keliher Letter.

The Court regards Mallinckrodt’s denial that the letter provides a complete and accurate

statement of the reasons for the closure as argument outside the scope of the facts asserted in the

statement and disregards it for the reasons expressed in footnote 2, supra.

8 Mallinckrodt attempts to qualify additional paragraph 6, arguing that the 2014 Sampling

Report contains only one year of results, and denying any meaning that the word “independent” was

¶ 6; PSMF ¶ 82; DRPSMF ¶ 82. Based on the 2014 Sampling Report, the Maine DMR

expanded the closure to include the fishing grounds Mr. Wyman used to harvest

lobster and crabs (the 2016 Closed Area), first on an emergency basis on June 21,

2016, and then on a permanent basis on November 15, 2016.9 PSAMF ¶ 7; DRPSAMF

¶ 7. Mr. Wyman has suffered special injury as a result of the two closures.10 PSAMF

¶ 8; DRPSAMF ¶ 8. Prior to the two fishing ground closures by the Maine DMR, the

mercury contamination in the Penobscot estuary did not affect Mr. Wyman’s business

in any way.11 PSAMF ¶ 9; DRPSAMF ¶ 9. From 1987 until the first closure in 2014,

meant to convey in Mr. Wyman’s statement other than that the 2014 Sampling Study was separate

from the Study Panel. DRPSAMF ¶ 6.

Regarding the first qualified response in which Mallinckrodt asserts that the Maine DMR and

CDC studies were only for one year, the Court agrees with Mallinckrodt that although the Maine DMR

and CDC commissioned a two-year study, the May 2, 2016, report attached as Exhibit 33 analyzes

data only from the first year of the study. The Court clarifies this point.

The Court views the term “independent” as referring to the state of Maine’s decision to conduct

its own separate study outside this ongoing litigation, thus in this context independent means state

generated and administered. The Court overrules Mallinckrodt’s qualification to the term

“independent.”

9 Mallinckrodt attempts to qualify paragraph 7 of Mr. Wyman’s statement of additional material

facts by pointing out that the sole reason for the expanded closure was not the 2014 Sampling Report.

DRPSAMF ¶ 7; DRPSMF ¶ 84. The Court reviewed the Maine DMR “Basis Statement” for its June

21, 2016, rulemaking in which it expanded the closure area. Ex. 31, Attach. 4, Ex. 35, Notice of

Rulemaking for the Second Closure, Dated June 21, 2016 (Emergency Rule) at 6 (ECF No. 59). The

Maine DMR writes: “The justification for the expanded boundary of the closed area is based on recent

data collected by the Department that shows lobsters in this area may have mercury levels above the

Maine Center for Disease Control and Prevention (MECDC) action level.” Id. Mallinckrodt’s objection

may seem obvious, namely that the Maine DMR took into account more than just its own study.

However, as the Maine DMR itself described the recent data as the basis for its rulemaking, the Court

rejects Mallinckrodt’s qualified response. If Mallinckrodt wished to place additional facts before the

Court on this issue, it was free to do so in its statements of fact.

10 Mallinckrodt denies additional paragraph 8. DRPSAMF ¶ 8; DRPSMF ¶¶ 90-102. The Court

reviewed the cited portions of the record and, for the purposes of resolving this partial summary

judgment motion in which Mr. Wyman is the non-movant, disregards Mallinckrodt’s denial. Mr.

Wyman has set forth ways in which he believes he has suffered special injury, and these instances of

special injury—though they may or may not affect the statute of limitations inquiry—have record

support. PSMF ¶¶ 90-102. In the context of Mallinckrodt’s motion for summary judgment, the Court

must view disputed facts in the light most favorable to Mr. Wyman.

11 Mallinckrodt denies additional paragraph 9. DRPSAMF ¶ 9; DRPSMF ¶ 89. The Court

reviewed the cited portions of the record and finds paragraph 9 is consistent with the cited record

support. For the purposes of resolving this partial summary judgment motion in which Mr. Wyman

is the non-movant, the Court disregards Mallinckrodt’s denial.

Mr. Wyman never had any concern about contamination of lobster or crab he

harvested, and none of his retail or wholesale customers ever expressed such a

concern to him.12 PSAMF ¶ 10; DRPSAMF ¶ 10. Similarly, no retail customer ever

declined to purchase crab or lobster from Mr. Wyman because of concerns about

mercury contamination in the Penobscot River estuary, and no wholesaler or other

commercial purchaser ever declined to purchase or lowered the price for purchase of

Mr. Wyman’s harvest because of such mercury contamination.13 PSAMF ¶¶ 11-12;

DRPSAMF ¶¶ 11-12. There has never been a single lobster or crab Mr. Wyman

harvested that he could not sell because of concerns related to mercury

contamination.14 PSAMF ¶ 13, DRPSAMF ¶ 13.

E. The AMEC Report and Recommendations

In January of 2016, the Court selected Amec Foster Wheeler Environment &

Infrastructure, Inc. (Amec) to perform an evaluation of potential active remedies to

speed the recovery of the Penobscot River estuary from its state of mercury

contamination. DSMF ¶ 18; PRDSMF ¶ 18. In September of 2018, Amec submitted

12 Mallinckrodt attempts to qualify paragraph 10 of Mr. Wyman’s statement of additional

material facts by stating that it is irrelevant, misleading, and prejudicial. DRPSAMF ¶ 10. The Court

regards Mallinckrodt’s qualification as argument outside the scope of the facts asserted in the

statement and disregards it for the reasons expressed in footnote 2, supra.

13 Mallinckrodt attempts to qualify paragraphs 11 and 12 of Mr. Wyman’s statement of

additional material facts by stating that they are irrelevant, misleading, and prejudicial. DRPSAMF

¶¶ 11-12. The Court regards Mallinckrodt’s qualification as argument outside the scope of the facts

asserted in the statement and disregards it for the reasons expressed in footnote 2, supra.

As a note, there is no paragraph 12 in Mr. Wyman’s statement of additional material facts.

The Court adjusts the last two numbers in Mr. Wyman’s statement of additional material facts from

13 and 14 to 12 and 13 to be sequential and match those in Mallinckrodt’s response to Mr. Wyman’s

statement of additional material facts.

14 Mallinckrodt attempts to qualify paragraph 14 of Mr. Wyman’s statement of additional

material facts by stating that it is irrelevant, misleading, and prejudicial. DRPSAMF ¶ 13. The Court

regards Mallinckrodt’s qualification as argument outside the scope of the facts asserted in the

statement and disregards it for the reasons expressed in footnote 2, supra.

its Phase III Engineering Study Report (the Phase III Report), which contained the

conclusions of its evaluation. DSMF ¶ 19; PRDSMF ¶ 19.

In its Phase III Report, Amec did not recommend system-wide dredging

because it would take decades to implement, would destroy habitat, had the potential

for increased mercury uptake in biota during and after dredging, and would be

particularly expensive, costing approximately $5,544,190,000.15 DSMF ¶¶ 22-23;

PRDSMF ¶¶ 22-23.

Additionally, Amec did not recommend enhanced monitored natural

attenuation to a sediment concentration of 300 nanograms per gram because of

“uncertainty as to how this remedial alternative would be applied system-wide and

the potential for negative effects from its application.” DSMF ¶ 24 (quoting Phase III

Report at 8-4); PRDSMF ¶ 24. Enhanced monitored natural attenuation is innovative

and has not been demonstrated on field scale for open systems such as estuaries, and

therefore system-wide application of this alternative would require extensive pre-

15 Paragraph 20 of Mallinckrodt’s statement of material facts reads: “Amec concluded that even

the most aggressive remedial alternatives evaluated would not lower mercury concentrations in

lobster tissue in the 2016 Closed Area below the Maine Center for Disease Control and Prevention’s

(Maine CDC) Fish Tissue Action Level (FTAL).” DSMF ¶ 20. Paragraph 21 reads: “The alternatives

which Amec concluded would get closest to this level were system-wide dredging to a system-wide

sediment mercury concentration goal [of] 300 nanograms per gram and enhanced monitored natural

attenuation to a system-wide sediment mercury concentration goal of 300 nanograms per gram.”

DSMF ¶ 21. In support of both paragraphs, Mallinckrodt cites page 6-4 of the Phase III Report. DSMF

¶ 21 (citing Phase III Engineering Study Report at 6-4, Me. People’s Alliance v. Holtrachem Mfg. Co.

(No. 1:00-cv-00069-JAW), ECF No. 972 (Phase III Report)). Mr. Wyman denies paragraph 20, arguing

that the “referenced portion of the Phase III Report does not support the asserted fact.” PRDSMF ¶

20.

Mallinckrodt’s proposed paragraphs 20 and 21 are extrapolations from the Phase III Report.

This is an exceedingly complex area and although it may turn out that Mallinckrodt is correct, the

Court is required to view contested facts in the light most favorable to Mr. Wyman and therefore

declines to include Mallinckrodt’s paragraphs 20 and 21 in the statement of uncontested material

facts.

design modeling to determine the implementation strategy. DSMF ¶ 24; PRDSMF

¶ 24. Furthermore, there is the concern that added material might deposit in

unintended areas such as in shipping channels, adversely impacting navigation.

DSMF ¶ 24; PRDSMF ¶ 24. Also, permits for this alternative could be difficult to

obtain due to the increased turbidity and particulate load that would result from

material additions which could affect biota. DSMF ¶ 24; PRDSMF ¶ 24.

Amec concluded that remediation at or below background mercury

concentrations “would be technically impractical.” DSMF ¶ 25 (quoting Phase III

Study at 6-3); PRDSMF ¶ 25. Amec further found that the concentration of

particulate mercury from samples at the former Veazie Dam averaged 217.5

nanograms per gram.16 DSMF ¶ 26; PRDSMF ¶ 26. Stacy Ladner, a former head of

the Maine Department of Environmental Protection’s licensing unit for the

hazardous waste program, testified that background mercury concentration in the

Penobscot River is approximately 290 nanograms per gram.17 DSMF ¶ 27; PRDSMF

¶ 27.

In its Phase III Report, Amec recommended a combination of remedial

alternatives which it estimated would cost between $246,068,000 and $333,376,000

16 Mr. Wyman denies paragraph 26 of Mallinckrodt’s statement of material facts because “[t]he

referenced table does not contain averages.” PRDSMF ¶ 26. The Court reviewed the cited portion of

the record and rejects Mr. Wyman’s denial. Though the cited table of the 2017 Sediment and Water

Quality Monitoring Report does not contain an average, the average is easily calculable based on the

information on that page. 2017 Sediment and Water Quality Monitoring Report at Table 3-3, Me.

People’s All. v. Holtrachem Mfg. Co. (No. 1:00-cv-00069-JAW), ECF No. 976.

17 Mr. Wyman attempts to qualify paragraph 27 of Mallinckrodt’s statement of material facts,

pointing out that Ms. Ladner “testified to what she ‘believe[d]’ to be the ‘right number,’ or ‘something

like that.’” PRDSMF ¶ 27 (quoting DSMF, Attach. 2 at 34:06-12). The Court reviewed the cited portion

of the record and alters paragraph 27 to reflect that Ms. Ladner testified to an approximation.

to implement. DSMF ¶ 28; PRDSMF ¶ 28. Amec anticipated that system-wide

recovery to a surface-weighted average concentration of 500 nanograms per gram in

sediment would take an additional twenty-five years after completion of remedial

work. DSMF ¶ 29; PRDSMF ¶ 29. Ecological recovery would take an unknown longer

period after sediments reached their target concentrations. DSMF ¶ 30; PRDSMF ¶

30.

III. THE PARTIES’ POSITIONS

A. Mallinckrodt’s Cross-Motion for Partial Summary Judgment

Mallinckrodt asserts that the applicable statutes of limitations for Mr.

Wyman’s public nuisance and strict liability claims is Maine’s general six-year

statute of limitations for civil actions, 14 M.R.S. § 752, and states that “[s]tatutes of

limitation . . . should be construed strictly in favor of the bar which it was intended

to create . . ..” Defs.’ Mot. at 4-5 (quoting Harkness v. Fitzgerald, 1997 ME 207, ¶ 5,

701 A.2d 370). Mallinckrodt outlines the legal standard for accrual in Maine and

states that “[a] defendant should not be held liable in perpetuity for conditions that

cannot reasonably be abated.” Id. at 5. Mallinckrodt then argues that the statutes

of limitation expired on Mr. Wyman’s public nuisance and strict liability claims.

1. The Statute of Limitations for Kenneth F. Wyman, Jr.’s

Public Nuisance Claim Has Expired

Mallinckrodt details the Maine Supreme Judicial Court’s (the Law Court)

holding in Jacques v. Pioneer Plastics, Inc., 676 A.2d 504 (Me. 1996), a case in which

“the plaintiffs claimed that contaminants dumped by the defendants’ predecessors

constituted a public nuisance,” despite that dumping having ceased in 1978. Defs.’

Mot. at 6. Mallinckrodt contends that “[t]he Law Court held that, unless the plaintiffs

could prove that the alleged nuisance was continuing, as opposed to permanent, the

statute of limitations ran from the date the dumping ended and had expired.” Id.

(emphasis in original) (citing Jacques, 676 A.2d at 506). Mallinckrodt further states

that the Law Court “held that a continuing nuisance is one in which ‘the thing that

constitutes the nuisance is not of such a permanent nature that it cannot readily be

removed and thus abated.’” Id. (quoting Jacques, 676 A.2d at 507).

Mallinckrodt cites caselaw from other states for the proposition that “Maine is

far from alone in holding that a cause of action for permanent public nuisance accrues

when the nuisance is created.” Id. at 6-7. Mallinckrodt argues that while “Maine’s

abatability test is more forgiving to plaintiffs than other jurisdictions which hold that

the statute of limitations always begins to run at the last act of nuisance or trespass,

irrespective of abatability,” “where a nuisance is found to be permanent . . . the

accrual inquiry in Maine does focus on the timing of Defendants’ acts since the cause

of action accrues when the nuisance arose.” Id. at 7. Therefore, in Mallinckrodt’s

view, Mr. Wyman’s “public nuisance cause of action accrued in 1982—the date of

[Mallinckrodt’s P]redecessors’ last mercury discharge—unless [Mr. Wyman] can

prove that the nuisance can readily be removed and thus abated,” and “[t]here is no

genuine issue of material fact . . . that the nuisance cannot be readily removed and

thus abated.” Id. at 7-8.

Proving that the nuisance can be readily removed and thus abated is Mr.

Wyman’s burden, and “mere technological feasibility does not prove abatability.” Id.

at 8. According to Mallinckrodt, “[w]hile it arguably remains an open question

whether the nuisance can be mitigated at extreme hardship and enormous expense,

it is a matter of judicial record that it cannot be readily removed and that whatever

happens mercury will remain in the system.” Id. (emphasis in original). Mallinckrodt

then outlines some of the Study Panel’s results which it says supports this conclusion.

Id. at 8-9.

Mallinckrodt argues in the alternative that “[e]ven if the Court were to hold

that accrual for a permanent nuisance occurs at the time it should reasonably have

been discovered, as some courts have held, [Mr. Wyman’s] claims are time-barred”

because “[m]ercury contamination on the Penobscot has been a matter of public

record since at least 1970, when the United States sued [Mallinckrodt’s P]redecessors

for mercury discharges from” the Orrington Plant, and therefore “[n]o reasonable

finder of fact could conclude that Mr. Wyman should not reasonably have discovered

mercury contamination until 2014.” Id. at 10. Additionally, “[e]ven if the Court were

to hold that accrual for a permanent nuisance occurs at the time of the first injury,

and not at the time the nuisance is completed, the statute of limitations would still

have expired,” as Judge Carter “found in 2002 that certain individuals had ceased

eating fish or shellfish from the Penobscot River and Bay because they were

concerned that the fish had dangerous levels of mercury” and “[m]ere ignorance of a

cause of action does not prevent the statute of limitations from running.” Id. at 10-

11 (quoting Dugan v. Martel, 588 A.2d 744, 746 (Me. 1991)).

2. The Statute of Limitations for Kenneth F. Wyman, Jr.’s

Strict Liability Claim Has Expired

Mallinckrodt avers that “[u]nder Maine law, strict liability causes of action

accrue upon occurrence of the allegedly dangerous activity.” Id. at 11 (citing City of

Bangor v. Citizen Commc’ns Co., No. Civ. 02-183-B-S, 2004 WL 1572612, at *8 (D.

Me. Jul. 6, 2004), recommended decision adopted by 2004 WL 2823211 (D. Me. Oct.

14, 2004)). Mallinckrodt describes the Magistrate Judge’s thinking in Citizen

Communications, stating that she “reasoned that strict liability differs from

nuisance, in which the statute of limitations may be suspended if the nuisance could

readily be removed but is not,” though she “recognized that a conflicting line of

authority applied the above-described abatability analysis to statute of limitations

defenses to strict liability claims.” Id. at 12. Mallinckrodt argues that “[t]his

apparent conflict is immaterial here” as “the alleged nuisance is indisputably

permanent,” and so “the statute of limitations for the strict liability claims has

expired . . ..” Id.

B. Kenneth F. Wyman, Jr.’s Opposition

Mr. Wyman argues that his causes of action for nuisance and strict liability

“did not accrue until [he] suffered ‘special injury’ and the earliest [he] suffered ‘special

injury’ was the first closure in February 2014.” Pls.’ Opp’n at 1. “Prior to that special

injury,” Mr. Wyman asserts, he “had no standing, no right or opportunity to bring the

claims [he] now pursue[s].” Id. at 1-2. Additionally, Mr. Wyman argues that the

feasibility of abating the mercury contamination in the Penobscot River is still an

open question and until that “question is resolved, the statute of limitations should

not run on claims of [Mr. Wyman] that sound in a continuing tort,” id. at 2, and that

“the issue of abat[]ability is currently being litigated in the federal RCRA case, the

outcome of which will resolve the nature of the continuing torts alleged in this case,

rendering [Mallinckrodt’s] call for dismissal premature.” Id.

1. The Statute of Limitations on Kenneth F. Wyman, Jr.’s

Nuisance and Strict Liability Claims Did Not Commence

Running Until He Suffered Special Injury

Mr. Wyman states that “[t]he general test for determining when a cause of

action accrues [for purposes of the Maine statute of limitations] is when the plaintiff

received a judicially recognizable injury,” id. at 4 (quoting McLaughlin v.

Superintending Sch. Comm. of Lincolnville, 2003 ME 114 ¶ 22, 832 A.2d 782, 788),

which he says means that “a statute of limitations does not commence against a party

before they have standing to sue.” Id. at 5. For Mr. Wyman “to have standing to

bring a cause of action for public nuisance or strict liability [he] must have ‘special

injury.’” Id. at 6. Mr. Wyman says that Mallinckrodt concedes that special injury is

an element of both causes of action, and therefore Mallinckrodt’s arguments raise the

question how Mallinckrodt “can possibly claim that [Mr. Wyman’s] cause of action

‘accrued’ before [he] suffered special injury when that special injury is an essential

element of the claim.” Id. at 7.

Mr. Wyman argues that he does “have a special interest, apart from the public

generally, to harvest lobsters and clams from the coastal waters of the State of Maine,

embodied in [his] commercial fishing license,” and that “[t]he two closures by [the

Maine] DMR in 2014 and 2016 caused by Mallinckrodt’s contamination of the

Penobscot River estuary constituted a direct interference with that right . . ..” Id.

Mr. Wyman says these closures are what provided him with standing, and therefore,

in his view, the statute of limitations cannot have begun running until the closures

occurred. Id. at 8.

Mr. Wyman contends Mallinckrodt’s assertion “that the standard for

determining when the statute of limitations commences for nuisance and strict

liability claims ‘differ[s] from the general tort principle that a cause of action accrues

at the time a judicially cognizable injury is sustained’ . . . is simply wrong and is not

remotely supported by the cases” Mallinckrodt cites. Id. (quoting Defs.’ Mot. at 5).

Rather, Mr. Wyman says “[t]he ‘general tort principle’ [he] ask[s] the Court to apply

is grounded in the specific language of 14 M.R.S.A. 752,” and “[n]o court, state or

federal, has the right to apply a different standard.” Id. at 9.

2. Kenneth F. Wyman, Jr.’s Nuisance and Strict Liability

Claims Are Not Time-Barred Because They Are

Continuing Torts

Mr. Wyman states that “[u]nder the continuing tort doctrine, ‘a new cause of

action accrues each day the hazardous materials remain,’” id. (quoting Jacques, 676

A.2d at 506), and “[t]he focus of the continuing tort doctrine, as applied in Maine, is

on the effects of the conduct of the tortfeasor, not the conduct itself, which may have

ceased decades ago.” Id. (emphasis in original). Mr. Wyman says he agrees with

Mallinckrodt “that when a tortfeasor creates conditions that cannot be abated, the

tort becomes permanent and the statute of limitations begins to run,” but differs with

Mallinckrodt on “the measure of how the issue of abat[]ability is determined.” Id. at

10.

Mr. Wyman asserts that “[w]hether a condition is abatable is a question of

fact.” Id. (citing Jacques, 676 A.2d at 508). He contends Mallinckrodt’s argument

“that the [Phase III Report] concludes that the mercury contamination cannot be

‘reasonably abatable’ and, therefore, the condition of the Penobscot River estuary

should be considered permanent as of the time that” Mallinckrodt’s mercury

discharges ceased, id. (citing Defs.’ Mot. at 8-11), “completely overlooks the fact that

the issue of whether the mercury contamination can be abated and the extent of the

abatement that is feasible and reasonable is subject to ongoing proceedings in the

federal RCRA case . . ..” Id. Therefore, in Mr. Wyman’s view, “even under

[Mallinckrodt’s] standard, it would be premature for this Court to dismiss this case

based on one piece of evidence in the federal RCRA case proceedings . . ..” Id. at 10-

11. Because of this, Mr. Wyman contends that “at a minimum, the Court should defer

ruling on the statute of limitations argument . . . until the Phase III proceedings [in

the Federal RCRA Case] are completed.” Id. at 11.

Additionally, Mr. Wyman says, “this Court does not need to wait to reject

[Mallinckrodt’s] abat[]ability argument” because “[h]ow the determination of

a[bat]ability is made is a critical issue.” Id. Mr. Wyman argues that he should have

the ability to elect to treat the nuisance here as permanent or not. Id. (citing

Spaulding v. Cameron, 239 P.2d 625, 628 (Cal. 1952)). Furthermore, Mr. Wyman

says that “[t]he Law Court has not expressly decided ‘what level of proof is necessary

. . . to successfully argue that [conditions constituting a nuisance] are in fact

abatable.’” Id. at 12 (alterations in original) (quoting Jacques, 676 A.2d at 508 n.3).

Mr. Wyman contends that an order of remediation in the Federal RCRA Case leaves

open the feasibility of abating the mercury contamination in the Penobscot River. Id.

at 12-13. Mr. Wyman says that the standard adopted in Maryland, New Jersey,

South Dakota, and Montana allows a claim for permanent nuisance to accrue on the

date when the permanency of the condition giving rise to the nuisance would become

clear to a reasonable person, and that the Law Court is likely to adopt this standard

because it cites all of these cases in Jacques and because the standard “conforms to

the core principle . . . that a plaintiff should have a reasonable time in which to

vindicate his claim.” Id.

C. Mallinckrodt’s Reply

Mallinckrodt asserts that Mr. Wyman’s “Opposition . . . vacillates between

acceptance of the inescapable conclusion that permanent nuisance claims accrue

upon creation of the nuisance and urging the unsupported position that a public

nuisance claim does not accrue until a plaintiff suffers special injury.” Defs.’ Reply at

1. In Mallinckrodt’s view, “[n]ot a single Maine case supports the latter proposition,

and it is directly at odds with authority from the Maine Supreme Judicial Court and

this Court.” Id. However, Mallinckrodt continues, even if Mr. Wyman is correct that

his “nuisance and strict liability causes of action accrued when [he] suffered special

injury, there is no genuine issue of material fact that [he] suffered such injury more

than six years before [he] filed this action,” and so the statute of limitations on his

permanent public nuisance and strict liability claims have run. Id. According to

Mallinckrodt, this leaves only Mr. Wyman’s continuing nuisance and strict liability

claims, “which should be dismissed because there is no genuine issue of material fact

that the alleged nuisance cannot be readily removed and thus abated.” Id.

1. Kenneth F. Wyman, Jr. Seems to Acknowledge that his

Permanent Public Nuisance and Strict Liability Claims

Accrued in 1982 at Latest

Mallinckrodt points out that “[a]fter arguing for five pages that there are no

exceptions to the ‘general’ rule that tort accrual periods begin to run upon injury to

the plaintiff, [Mr. Wyman] acknowledge[s] ‘that when a tortfeasor creates conditions

that cannot be abated, the tort becomes permanent and the statute of limitations

begins to run.” Id. at 2 (quoting Pls.’ Opp’n at 10). Therefore, Mr. Wyman “apparently

agree[s] with the central legal point in [Mallinckrodt’s] cross-motion for summary

judgment—that actions for permanent nuisance accrue when the tortfeasor creates

the conditions complained of.” Id. Mallinckrodt argues that in Jacques, the Law

Court stated this directly. Id. (citing Jacques, 676 A.2d at 506).

Mallinckrodt states that Mr. Wyman “halfheartedly suggest[s] that the accrual

period for public nuisance might be different than that for private nuisance,” but that

this view is erroneous because of Mangini v. Aerojet-General Corp., 912 P.2d 1220,

(Cal. 1996), and In re MTBE Products Liability Litigation, 824 F. Supp. 2d 524

(S.D.N.Y. 2011), in which Mallinckrodt’s proffered accrual theory was used in public

nuisance cases, as well as Jacques, in which the Law Court did not specify whether

it was dealing with a public or private nuisance but which involved contamination

which the Maine Department of Environmental Protection “had described as

‘dangerous to public health and in need of remediation.’” Id. at 2-3 (quoting Jacques,

676 A.2d at 506). In Mallinckrodt’s view, Mr. Wyman “do[es] not cite a single case

holding that a claim for public nuisance does not accrue until the plaintiff suffers

special injury.” Id. at 3.

Mallinckrodt characterizes Mr. Wyman as arguing “the mistaken position that

the ‘general’ test for accrual of tort causes of action applies to permanent nuisances,”

contradicting his “apparent[]” concession at page ten of his opposition. Id. at 4 (citing

Pls.’ Opp’n at 4-9). Mallinckrodt says that Mr. Wyman’s claims “are time-barred even

if this general test applied to permanent nuisance claims,” but it does not. Id.

Mallinckrodt points to Mr. Wyman’s statement that “[t]he ‘general tort principle’ [he]

ask[s] the Court to apply is grounded in the specific language of 14 M.R.S.A. 752,” id.

(quoting Pls.’ Opp’n at 9), and states that Section 752 “neither states nor implies

anything about when a cause of action accrues.” Id. Rather, “the time of accrual

depends on the cause of action being alleged.” Id. at 4-5 (quoting Burke v. Hamilton

Beach Div., 424 A.2d 145, 149 (Me. 1981), overruled on other grounds by Adams v.

Buffalo Forge Co., 443 A.2d 932 (Me. 1982)). Mallinckrodt also states that Mr.

Wyman “ignore[s] myriad circumstances under which the accrual analysis turns on

the defendant’s conduct, as opposed to the plaintiff’s injury,” including Citizens

Communications. Id. at 5-7 (citing 2004 WL 157212, at *8).

Additionally, Mallinckrodt discusses Mr. Wyman’s application of the discovery

rule to his case. Mallinckrodt says that not all the cases Mr. Wyman cites as having

adopted a discovery rule for public nuisance claims “stand for what [Mr. Wyman]

say[s] they do” and that contrary to Mr. Wyman’s assertions, Jacques did not cite all

these case and did not cite any of them for propositions related to the discovery rule.

Id. at 7. Mallinckrodt argues that application of the discovery rule here is also “at

odds with established Maine law . . ..” Id. at 7-8. Furthermore, “the discovery rule

would not save [Mr. Wyman’s] claims” because he “should have known of the mercury

contamination well before the 2014 closure,” an argument which Mallinckrodt says

Mr. Wyman did not rebut in his opposition. Id. at 8. Lastly, Mallinckrodt argues

that the Court “should reject [Mr. Wyman’s] argument that [his] claims are not stale”

because of the ongoing effects of the mercury contamination on the Penobscot River

because “[t]he duration of a tort’s effects has no bearing on the running of the statute

of limitations.” Id.

2. The Statute of Limitations Has Run on Kenneth F. Wyman,

Jr.’s Causes of Action Even If They Accrued upon the

Occurrence of a Judicially Cognizable Injury18

Mallinckrodt argues that even if the Court were to conclude that Mr. Wyman’s

cause of action accrued upon his injury, his argument “fails because [he] suffered a

judicially cognizable injury long before the first fishery closure in 2014.” Id. at 9. It

is “[t]he violation of a party’s legal rights [that] constitutes judicially cognizable

injury[,] even if certain other types of money damages or other harm have not yet

occurred.” Id. Therefore, in Mallinckrodt’s view, Mr. Wyman “suffered a judicially

cognizable injury no later than 1987, when [he] became licensed to fish in a

18 Mallinckrodt makes clear that it makes this argument “in the alternative to [its] position that

causes of action for permanent nuisance and strict liability caused by [Mallinckrodt’s P]redecessors’

mercury contamination accrued in 1982 and expired six years later.” Id. at 10 n.3. Mallinckrodt states

that “[w]hile this position may seem harsh, its alternative is absurd and even harsher,” as if Mr.

Wyman is correct that “a cause of action for permanent nuisance accrues each time plaintiffs first

suffer special injury, [Mallinckrodt] would never have repose,” despite the fact that “[a] defining

characteristic of a permanent nuisance is that it cannot reasonably be abated.” Id.

contaminated area” and “he suffered actual injury no later than 2002, when [the

Court] issued findings regarding the diminished reputation of Penobscot seafood in

the eyes of the public.” Id. Mallinckrodt says that Mr. Wyman “seem[s] ‘to confuse

the concept of what constitutes an injury for purposes of the accrual of a cause of

action with what constitutes damages resulting from that injury.’” Id. at 10 (quoting

Descoteau v. Analogic Corp., 696 F. Supp. 2d 138, 141 (D. Me. 2010)). “Once Mr.

Wyman became a commercial fisherman, the mercury contamination itself

constituted a violation of his rights for which at least nominal damage was implied

and a cause of action accrued.” Id. That Mr. Wyman’s harm “might have been greater

or more easily proven at a later time did not toll the statute of limitations,” as “[a]n

action in permanent nuisance or permanent strict liability would have entitled [him]

to recover all prospective damages [he] could prove.” Id. at 11.

Additionally, Mallinckrodt says, “[e]ven if the law did not recognize a judicially

cognizable injury upon violation of a plaintiff’s rights, the indisputable evidence

establishes damage to the reputation of the Penobscot fishery well more than six

years before [Mr. Wyman] brought [his] claim[s].” Id. at 12. “[T]he undisputed record

evidence,” in Mallinckrodt’s view, shows that “the mercury contamination at issue

had tarnished the reputation of seafood harvested in the Penobscot estuary by 2002

at the latest.” Id. Despite Mr. Wyman’s testimony that “he would not have fished

the Penobscot River had he been aware of the mercury contamination,” Mallinckrodt

argues that “[t]he happenstance that Mr. Wyman did not become aware of the

contamination until nearly 30 years after he began fishing the area does not control

the timing of accrual” because well-established Maine law makes clear that “judicially

cognizable injury occurs as soon as a plaintiff’s rights have been violated, regardless

of whether he is aware of his injury or has suffered actual damages.” Id. at 12-13.

3. There Is No Genuine Issue of Material Fact that the

Alleged Nuisance Cannot Be Readily Removed and Thus

Abated

Mallinckrodt asserts that Mr. Wyman’s “continuing tort claim fails because

there is no genuine issue of material fact that the alleged nuisance cannot be readily

removed and thus abated.” Id. at 13. In Mallinckrodt’s view, Mr. Wyman “conflate[s]

the abatability inquiry with the feasibility question at issue in the federal RCRA

case,” despite the fact that “these are distinct standards.” Id. Mallinckrodt affirms

that “[s]ince at least 1929, the Law Court’s standard for designating a nuisance as

continuing is that it can ‘readily be removed and thus abated.’” Id. (emphasis in

original) (quoting Caron v. Margolin, 128 Me. 339, 147 A. 419, 420 (1929)).

Mallinckrodt notes that “the word ‘readily’ appears nowhere in the Opposition,”

which instead focuses on “whether abatement of the alleged nuisance is feasible.” Id.

(citing Pls.’ Opp’n at 2, 10, 12) (emphasis in original).

Mallinckrodt outlines caselaw from other states in which those courts “have

held as a matter of law that pollution-related nuisances are permanent even though

remediation is feasible or remains an open question.” Id. at 13-14. Mallinckrodt

contends that the Court should do the same here, as the fact that “feasibility of

remediation remains an open question after more than 15 years of study and

litigation establishes indisputably that the alleged nuisance cannot readily be

removed.” Id. at 14 (emphasis in original). Mallinckrodt adds, “[a]s a practical

matter, [Mallinckrodt has] no discretion to abate the alleged nuisance” because the

decision whether and how to remediate “is in the hands of the federal court and has

been for nearly 20 years.” Id. at 15. Such remediation “would also be subject to

extensive state or federal permitting requirements . . ..” Id. Therefore, “[w]hether

‘readily’ is interpreted to mean quickly and efficiently, on the one hand, or willingly,

on the other, the alleged nuisance cannot be readily removed.” Id.

4. Kenneth F. Wyman, Jr. May Not Elect Between Continuing

and Permanent Tort When the Statute of Limitations on

the Permanent Tort Claims Has Already Expired

Mallinckrodt frames Mr. Wyman’s argument that he should be able to elect

whether to pursue a continuing or permanent tort as an attempt “to make an end-

run around [his] statute of limitations problem . . ..” Id. However, Mallinckrodt says,

such an election “is appropriate only in cases where the continuing/permanent

distinction is one of damages, not when it determines the statute of limitations.” Id.

at 15-16. Mallinckrodt states that “[w]hile [Mr. Wyman] may plead permanent and

continuing nuisance . . . that does not relieve [him] of the legal implications of the

respective alternatives: if permanent, the statute of limitations began to run when

the condition was created, and if continuing, [Mr. Wyman] must prove that the

nuisance is abatable.” Id. at 17.

5. At a Minimum, the Court Should Grant Summary

Judgment on Kenneth F. Wyman, Jr.’s Permanent

Nuisance and Strict Liability Claims

Mallinckrodt argues that even if the Court were to conclude “that there is a

genuine issue of material fact as to whether the alleged nuisance can readily be

removed and thus abated, there is no genuine issue of material fact that the statute

of limitations has run on any claim for permanent nuisance.” Id. (emphasis in

original). Mallinckrodt states that Mr. Wyman “seem[s] to acknowledge this.” Id.

(citing Pls.’ Opp’n at 10, 12-13). Therefore, “[a]t the very least, the Court should grant

summary judgment to the extent [Mr. Wyman] claim[s] a permanent nuisance.” Id.

IV. LEGAL STANDARD

A grant of summary judgment is proper when “the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” FED. R. CIV. P. 56(a). “Genuine issues of fact are those that a

factfinder could resolve in favor of the nonmovant, while material facts are those

whose ‘existence or nonexistence has the potential to change the outcome of the suit.’”

Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting

Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56

(1st Cir. 2011)).

Once the moving party “has made a preliminary showing that there is no

genuine issue of material fact, the nonmovant must ‘produce specific facts, in suitable

evidentiary form, to . . . establish the presence of a trialworthy issue.’” McCarthy v.

City of Newburyport, 252 Fed. App’x 328, 332 (1st Cir. 2007) (alteration in original)

(quoting Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)).

The nonmoving party must show “‘enough competent evidence’ to enable a factfinder

to decide in its favor on the disputed claims.” Carroll v. Xerox Corp., 294 F.3d 231,

237 (1st Cir. 2002) (quoting Goldman v. First Nat’l Bank of Bos., 985 F.2d 1113, 1116

(1st Cir. 1993)). The Court then “views the facts and draws all reasonable inferences

in favor of the nonmoving party,” Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632

F.3d 31, 35 (1st Cir. 2011), while disregarding “[c]onclusory allegations, improbable

inferences, acrimonious invective, or rank speculation.” Mancini, 909 F.3d at 38

(quoting Ahern, 629 F.3d at 54).

When determining an issue of state law in the absence of controlling authority

from that state’s highest court, the Court “must make an ‘informed prophecy’ as to

how the state’s highest court . . . would rule if faced with the issue.” Lawless v.

Steward Health Care Sys., LLC, 894 F.3d 9, 21 (1st Cir. 2018) (quoting Sanders v.

Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016)). In order to do so, the Court “may

look to ‘analogous decisions, considered dicta, scholarly works, and any other reliable

data tending convincingly to show how the [state’s highest court] would decide the

issue at hand.’” Id. (quoting N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 38

(1st Cir. 2001)).

V. DISCUSSION

Mr. Wyman is proceeding against Mallinckrodt on seven counts: (1) continuing

public nuisance, (2) permanent public nuisance, (3) continuing tort-strict liability, (4)

permanent strict liability, (5) continuing tort-negligence, (6) permanent negligence,

and (7) punitive damages.19 First Am. Compl. ¶¶ 47-81. Mallinckrodt seeks

19 Although not raised by Mallinckrodt, Count VII, the punitive damages count, is subject to

dismissal because punitive damages “are not a separate cause of action but, rather, an element of

summary judgment on four of these counts: (1) the continuing public nuisance claim,

(2) the permanent public nuisance claim, (3) the continuing tort-strict liability claim,

and (4) the permanent strict liability claim. Defs.’ Mot. at 1. The parties agree that

the appropriate statute of limitations for these claims is 14 M.R.S. § 752. See id. at

5 (citing Jacques, 676 A.2d at 506; Citizen Commc’ns, 2004 WL 1572612, at *8); Pls.’

Opp’n at 1. Section 752 states:

All civil actions shall be commenced within 6 years after the cause of

action accrues and not afterwards, except actions on a judgment or

decree of any court of record of the United States, or of any state, or of a

justice of the peace in this State, and except as otherwise specially

provided.

14 M.R.S. § 752. Based on this language, the relevant questions are: (1) when claims

for permanent nuisance and strict liability accrue; (2) whether there is a genuine

dispute of material fact as to whether the mercury contamination of the 2016 Closed

Area is readily abatable such that it constitutes a continuing nuisance; and (3)

whether the continuing tort theory may be applied to common law or statutory strict

liability claims and, if so, when such claims accrue.

damages in, and thus wholly derivative of, [another underlying claim].” Havlik v. Johnson & Wales

Univ., 509 F.3d 25, 34 (1st Cir. 2007); see also Redmond v. Yachting Sols., LLC, No. 2:17-cv-292-GZS,

2018 U.S. Dist. LEXIS 31470, at *5 (D. Me. Feb. 27, 2018) (“It is well established that punitive damages

‘do not constitute a separate cause of action, but instead form a remedy available for some tortious or

otherwise lawful acts’”) (quoting S. Port Marine, LLC v. Gulf Oil Ltd. P’ship. 234 F.3d 58, 64 (1st Cir.

2000)) (emphasis in South Port).

The Court raised this issue with counsel for Mr. Wyman at oral argument on February 19,

2020 and suggested that he might wish to dismiss the separate punitive damages count. Tr. of

Proceedings, Oral Argument at 7:15-8:12 (ECF No. 95) (Oral Arg. Tr.). Since oral argument, the Court

has received no dismissal of the punitive damages count and no reassertion of the claim for punitive

damages as part of the damages claims in the other counts. The Court will refrain from dismissing

Count VII for the time being, but ultimately, as the Court informed Mr. Wyman’s counsel, Court VII

as a standalone count is subject to dismissal.

A. Statutes of Limitations: An Overview

The courts of the state of Maine have long enforced statutes of limitations. In

1897, the Maine Supreme Judicial Court wrote:

After much and varying judicial exposition, statutes of limitation are

now almost universally held to be statutes of repose, to be interpreted

and applied to effect that purpose. Any act or declaration interposed to

defeat or postpone that effect is to be closely scrutinized.

Johnston v. Hussey, 89 Me. 488, 36 A. 993, 993 (1897); see also Stromberg-Carlson

Corp. v. State Tax Assessor, 2001 ME 11, ¶ 13, 765 A.2d 566 (“The purpose of the

statute [of limitations], in general, is to provide eventual repose for potential

defendants and to avoid the necessity of defending stale claims”). In enacting a

statute of limitations, the Maine Legislature (Legislature) has sought “to reconcile

the injured party’s interest in compensation with the liable party’s interest in a

terminal date to litigation.” Pino v. Maplewood Packing Co., 375 A.2d 534, 537 (Me.

1977). In Myrick v. James, 444 A.2d 987 (Me. 1982), the Law Court explained:

First, parties injured by the actions of others must be afforded an

opportunity to pursue their meritorious claims and seek relief in the

courts. On the other hand, potential defendants are entitled to eventual

repose and to protection from being required to meet claims which could

have been addressed more effectively if asserted more promptly.

Difficulties in defending stale claims are caused by faded memories,

dead or otherwise unavailable witnesses, and lost or destroyed evidence.

Additionally, several courts have attributed to statutes of limitations

the function of filtering out those claims which are spurious,

inconsequential, and unfounded, because meritorious claims “are not

usually allowed to remain neglected.” The intended effect, then, of

statutes of limitations is to stimulate activity and to punish negligence

and slumber.

Id. at 994 (internal citations omitted) (quoting Riddlesbarger v. Hartford Ins. Co., 74

U.S. 386, 390 (1868)), superseded by statute on other grounds by P.L. 1985, ch. 804,

§§ 13, 22 (effective Aug. 1, 1988) (codified at 24 M.R.S. § 2902 (2011)), as recognized

in Choroszy v. Tso, 647 A.2d 803, 807 (Me. 1994) and Novak v. Mentor Worldwide

LLC, 287 F. Supp. 3d 85, 90 (D. Me. 2018).

The Law Court has stressed that “[i]n interpreting a statute, [the] single goal

is to give effect to the Legislature’s intent in enacting the statute.” Packgen, Inc. v.

Bernstein, Shur, Sawyer & Nelson, P.A., 2019 ME 90, ¶ 20, 209 A.3d 116 (internal

citation omitted). The Law Court has cautioned that it “construe[s] statutes of

limitations narrowly.” Id. ¶ 19 (quoting White v. McTeague, Higbee, Case, Cohen,

Whitney & Toker, P.A., 2002 ME 160, ¶ 8, 809 A.2d 622).

The statutory structure of Maine’s law on statutes of limitations starts with a

general six-year statute of limitations, 14 M.R.S. § 752, the one typically applicable

absent a separate specific provision and the one applicable to Mr. Wyman’s claims.

The Maine Legislature has altered this general statutory rule to address specific

occupations or circumstances. See, e.g, 14 M.R.S. § 752-A (design professionals: four

years from the date of discovery but no more than ten years after contract or services

completion); 14 M.R.S. § 752-B (ski areas: two years after the cause of action accrues);

14 M.R.S. § 752-C (sexual acts towards minors: no limitation); 14 M.R.S. § 752-D

(land surveyors: within four years after the negligence was discovered, but no more

than ten years after contract or services completion); 14 M.R.S. § 753 (assault and

battery, false imprisonment, and slander and libel: two years after the cause of action

accrues); 14 M.R.S. § 753-B (attorneys: accrual from the date of malpractice, not the

date of discovery, except for title opinions and the drafting of wills); 14 M.R.S. § 859

(fraud or fraudulent concealment: six years from discovery of cause of action); 24

M.R.S. § 2902 (health care providers and practitioners: three years from the date of

malpractice, except for “foreign object” cases where the cause of action accrues at the

date the patient discovers or reasonably should have discovered the harm). These

statutory exceptions demonstrate that the Maine Legislature is aware of the impact

of statutes of limitations on certain industries and professions and on certain

potential plaintiffs and has tailored both the time within which claims must be

brought and when claims accrue to fit circumstances not subject to the general rule.

In general, the Maine Supreme Judicial Court has resisted placing a judicial

gloss on section 752 that would undercut the legislative judgment reflected in the

statutory language. The First Circuit has written that “[d]epartures from Maine’s

date-of-injury rule are rare. They have involved careful balancing between competing

interests of fairness and repose, and the opinions have not always been unanimous.”

Erlich v. Ouellette, Labonte, Roberge & Allen, P.A., 637 F.3d 32, 37 (1st Cir. 2011).

However, the Legislature and the Law Court have cracked open the limitations door

and allowed some specific claims to commence from the date of discovery. In addition

to a narrow set of statutory exceptions, the common law discovery rule is limited to

“three discrete areas: legal malpractice, foreign object and negligent diagnosis

medical malpractice, and asbestosis,” Novak, 287 F. Supp. 3d at 90 (quoting Johnston

v. Dow & Coulombe, Inc., 686 A.2d 1064, 1066 (Me. 1996)), as well as “circumstances

where there is both (1) a fiduciary relationship between plaintiff and defendant and

(2) the tort is virtually undiscoverable by the plaintiff, in the absence of an

independent investigation that would be destructive of the fiduciary relationship.”

Verizon New England, Inc. v. Fleet Elec. Servs., Inc., No. CV-04-646, 2006 WL

1990819, at *1 (Me. Super. Ct. June 2, 2006) (citing Bangor Water Dist. v. Malcolm

Pirnie Eng’rs, 534 A.2d 1326, 1328 (Me. 1988)); see also In re George Parsons 1907

Tr., 2017 ME 188, ¶ 23, 170 A.3d 215 (same); Erlich, 637 F.3d at 36 (same) (citing

Nevin, 1999 ME 47, ¶ 25).

Mr. Wyman has not explicitly argued that the “discovery rule” should be

applied to his claims but did state his belief that Maine was likely to adopt a rule that

“a claim for permanent nuisance must be brought within the number of years

specified in the statute of limitation of the date when the permanency of the

conditions giving rise to a nuisance becomes manifest to a reasonably prudent

person.” Pls.’ Opp’n at 12-13 (alterations omitted) (quoting Litz v. Md. Dep’t of the

Env’t, 76 A.3d 1076, 1087 (Md. Ct. App. 2013)). The Court regards this argument as

akin to seeking application of the discovery rule.

Mr. Wyman filed his lawsuit on March 5, 2018, Compl., and Mallinckrodt’s

Predecessor’s last discharge from the Orrington Plant took place in April of 1982.

DSMF ¶ 4; PRDSMF ¶ 4. Mr. Wyman therefore filed his lawsuit nearly thirty-six

years after Mallinckrodt’s last discharge. To avoid the six-year statute of limitations,

Mr. Wyman argues that his claims of nuisance and strict liability against

Mallinckrodt had not “accrued” until he “suffered ‘special injury’ and the earliest [he]

suffered ‘special injury’ was the first closure in February 2014.” Pls.’ Opp’n at 1.

Before February of 2014, Mr. Wyman says, he had “no standing, no right or

opportunity to bring the claims [he] now pursue[s].” Id. at 1-2.

Section 752 does not define “accrues” and, in fact, the Maine Legislature has

“never defined when a cause of action accrues under this statute but has left that

determination to the Judicial Department.” Anderson v. Neal, 428 A.2d 1189, 1190

(Me. 1981). “Maine courts generally consider an action accrued ‘when a plaintiff

received a judicially recognizable injury.’” Erlich, 637 F.3d at 35 (quoting

McLaughlin, 2003 ME 114, ¶ 22). “In other words, it accrues at ‘the point at which a

wrongful act produces an injury for which a potential plaintiff is entitled to seek

judicial vindication.’” McLaughlin, 2003 ME 114, ¶ 22 (quoting Williams v. Ford

Motor Co., 342 A.2d 712, 714 (Me. 1981)). In Burke, the Law Court further explained

that the “time of accrual depends on the precise substantive elements of each cause

of action.” 424 A.2d at 149. For a contract action, for example, “a cause of action

accrues at the time of breach.” Id. For a breach of warranty action, “the time of sale

or delivery of the defective goods” is the date the statute of limitations begins to run.

Id.

With this background, the Court turns to the date of accrual for the public

nuisance and strict liability counts in this case.

B. Permanent Nuisance and Strict Liability

The first question—when the permanent nuisance and strict liability claims

accrue—has the most clear-cut answer. Consistent with the Law Court’s directive

in Burke, the analysis begins with “the precise substantive elements of” the

permanent nuisance and strict liability claims. Burke, 424 A.2d at 149. Addressing

the nuisance claim first, it is important that Mr. Wyman is not claiming that

Mallinckrodt has caused a private nuisance. First Am. Compl. ¶¶ 47-60 (Count I –

Continuing Public Nuisance; Count II – Permanent Public Nuisance). Instead, Mr.

Wyman is proceeding with the claim that Mallinckrodt created a public nuisance. Id.

In 1859, Justice Appleton of the Law Court discussed the concept of a public

nuisance in Brown v. Watson, 47 Me. 161 (1859). In Brown, the “defendant obstructed

the public highway, over which the plaintiff was passing, by felling trees across the

same, so as to render it impassable. He thus caused a nuisance. . ..” Id. at 162.

Justice Appleton wrote:

The law is well settled, that no person can maintain an action for a

common nuisance, unless he has suffered therefrom some special and

peculiar damages other and greater than those sustained by the public

generally. Those, who have no occasion of business or pleasure to pass

over a road thus obstructed, and who have not attempted it, cannot

maintain an action for the obstruction thereon.

Id.; see also JACK H. SIMMONS, DONALD N. ZILLMAN & ROBERT H. FURBISH, MAINE

TORT LAW § 14.03 (2018 ed.) (“Justice Appleton . . . got it just exactly right”). Thus,

to maintain a claim of public nuisance, a plaintiff must demonstrate that the nuisance

caused “special damages to him, not common to others . . ..” Cole v. Sprowl, 35 Me.

161, 169 (1852).

With this concept in mind, the Court turns to the nub of the issue: when Mr.

Wyman’s permanent nuisance claim based on Mallinckrodt’s discharge of mercury

into the Penobscot River accrued or—more precisely in the context of this motion—

whether there is a genuine issue of material fact as to when Mr. Wyman’s claim of

permanent nuisance as a result of Mallinckrodt’s discharge accrued. On this issue,

there is little, if any, disagreement on the facts.

The Law Court has ruled that the six-year statute of limitations of 14 M.R.S.

§ 752 applies to nuisance actions. See Perkins v. Town of Searsport, 2001 ME 118, ¶

1, n.1, 776 A.2d 1221 (“[T]he statute of limitations for . . . nuisance is six years”

(quoting Jacques, 676 A.2d at 506)). Applying the six-year statute of limitations, Mr.

Wyman must demonstrate that his claim of permanent nuisance first accrued

sometime after March 5, 2012. Mr. Wyman points to the February 22, 2014, Maine

DMR closure on his lobster-fishing grounds north of a line from Wilson Point to Fort

Point Lighthouse, a closure that took place within the six-year statute of limitations.

PSAMF ¶ 4; DRPSAMF ¶ 4. Mr. Wyman also points out that he had fished for and

sold lobster in the now closed area from 1987 until the first closure in 2014 without

any concern about the lobsters or crabs being contaminated with mercury or any loss

of business from the contamination. PSAMF ¶¶ 9-13; DRPSAMF ¶¶ 9-13. Yet,

although not explicitly postulated by Mallinckrodt, the Court infers that the lobster

and crab in the now-closed area were in fact contaminated with some degree of

mercury from at least 1982 onward.20 See PSAMF ¶¶ 4, 9. The facts establish that,

even though Mr. Wyman (and others, including the Maine DMR) did not know that

lobster and crab north of Wilson Point to Fort Point Lighthouse line had elevated

levels of mercury, the lobsters and crabs did in fact have such elevated levels for the

20 At oral argument, Mallinckrodt agreed with the proposition that “at least from around 1982

onward the lobsters and crabs of the now closed area had some degree of elevated mercury due to the

Mallinckrodt discharge,” and Mr. Wyman stated that he did not “have any grounds to disagree with it

. . ..” Oral Arg. Tr. at 10:12-11:02 (ECF No. 95).

period from at least 1987 onward. As a fisherman for lobster and crab with elevated

mercury levels, Mr. Wyman had sustained special damage beyond what members of

the general public had sustained in 1987 when he began fishing in that area. See

Burgess v. M/V Tamano, 370 F. Supp. 247, 250 (D. Me. 1973) (stating that the injury

complained of by “commercial fishermen and clam diggers” had “resulted from

defendants' alleged interference with their direct exercise of the public right to fish

and to dig clams” (emphasis omitted)). He just did not know it.

In this sense, Mr. Wyman’s special damage is like the injury to the patients in

the Tantish v. Szendey, 158 Me. 228, 182 A.2d 660 (1962), and Myrick v. James cases.

These cases involved surgical procedures where a surgeon negligently left a foreign

object in a patient’s body during the surgery and the patient could not discover the

existence of the foreign object until the statute of limitations had run. The historical

development of these Law Court cases is instructive. Until 1982, the Maine courts

held that the statute of limitations began running for foreign object cases at the time

of the surgery. Thus, when Marjorie Tantish filed suit in 1960 against her surgeon

for leaving a tubing in her back during a 1956 surgery, the Maine Supreme Judicial

Court held that her claim was barred by the two-year statute of limitations even

though she was not aware of the foreign object until 1958. Tantish, 158 Me. at 228-

30. Like Mr. Wyman, Ms. Tantish suffered an injury she was unaware of until she

discovered it, but the statute of limitations barred her claim.

The Law Court judicially changed the accrual rule two decades later in Myrick

to redefine the accrual date for foreign object plaintiffs from the date of the surgery

to the date the patient discovered the foreign object. 444 A.2d at 995-97. But, as

then-Justice Gene Carter explained, it did so because the “patient must repose great

confidence and trust in her surgeon.” Id. at 997. Thus, following its 1981 decision in

Anderson v. Neal, where the Law Court applied the discovery rule to a claim of legal

malpractice in which the attorney’s negligence could not have been discovered at the

time of the real estate transaction, the Maine Supreme Judicial Court recast the

accrual date as the date of discovery for a limited set of claims involving a fiduciary-

like relationship.21 But Mr. Wyman has not alleged nor could he allege that he

enjoyed a fiduciary-like relationship with Mallinckrodt’s Predecessors. Thus, he

cannot fit within the narrow band of cases where the Maine Supreme Judicial Court

has adopted the discovery rule for purposes of the running of the statute of

limitations. Mr. Wyman, like Marjorie Tantish, sustained an injury but did not know

it until the Maine statute of limitations had run.22

Moreover, Mr. Wyman conflates the “special damages” analysis—relevant to

standing to sue on a public nuisance—with the altogether different legal question of

claim accrual. Mr. Wyman’s argument is that an individual plaintiff’s claim of

permanent public nuisance does not accrue until that plaintiff suffers special

21 Effective in 1988, the Maine Legislature adopted the discovery rule announced in Myrick for

foreign object medical malpractice cases. See AN ACT RELATING TO MEDICAL AND LEGAL PROFESSIONAL

LIABILITY, 1985 ME. LAWS 4273, § 13 (effective Aug. 1, 1988) (codified at 24 M.R.S. § 2902 (2011)).

22 For the discovery rule cases, the legal standard of the plaintiff’s knowledge is high. In

Anderson, the Law Court stressed the client’s “lack of means for discovery” of the existence of the

unrevealed right of way, 428 A.2d at 1192, and in Myrick, the Law Court described the existence of

the foreign object as “unknown and unknowable.” 444 A.2d at 995 (emphasis in original). In Myrick,

the Maine Supreme Judicial Court established that the standard for knowledge on the part of the

plaintiff in such cases is “when the plaintiff discovers, or in the exercise of reasonable care and

diligence, should discover” the negligence. 444 A.2d at 996. Whether Mr. Wyman could meet this

standard in the facts of this case is another matter.

damages. Pls.’ Opp’n at 6. However, in Jacques, a land purchaser of Lot B brought

a lawsuit based on a nuisance theory against the prior owner when the purchaser

discovered that the owner had dumped hazardous chemicals on the land. 676 A.2d

at 505-06. The prior owner stopped all dumping as of 1978 and the purchaser bought

the land in 1980. Id. Significantly, the Jacques Court wrote:

Because it is undisputed that no dumping has occurred since 1978, the

plaintiffs’ claim may be maintained only if the materials on lot B

constitute a continuing nuisance.

Id. at 506. This statement, although a dictum, strongly suggests that the Maine

Supreme Judicial Court views the date of the last tortious act as the date of accrual

for nuisance claims under 14 M.R.S. § 752. Otherwise, the plaintiffs’ claim could have

been maintained if they had demonstrated that they first suffered damages when

they discovered the nuisance, not when it was created. If Mr. Wyman were correct

that his cause of action did not accrue until he suffered special injury, the Law Court

in Jacques would not have referenced 1978 in determining that a cause of action for

permanent nuisance could not lie, 676 A.2d at 506, but rather 1980, when the

plaintiffs in that case purchased the property, or some later date, when they

sustained “special injury” by attempting to improve or sell the property and were

unable to do so. Indeed, it is not clear even if Mr. Wyman disagrees with this

proposition. See Opp’n at 10 (stating that “when a tortfeasor creates conditions that

cannot be abated, the tort becomes permanent and the statute of limitations begins

to run”).

Mr. Wyman’s accrual theory is also contradicted by Dunelawn Owners’

Association v. Gendreau, 2000 ME 94, 750 A.2d 591. In Dunelawn, the defendants

built a condominium in the early 1980s and created an owners’ association at the

close of construction in 1984. Id. ¶ 2. Two of the plaintiffs purchased one unit of the

condominium in 1985. Id. ¶ 3. In 1995, the plaintiff-owners of the unit suffered a

fire due to allegedly negligently installed wiring in their home. Id. ¶¶ 3-4. The

plaintiff-owners and the condominium’s owners’ association brought an insurance

subrogation claim against the condominium’s builder, alleging claims including

negligence and strict liability. Id. ¶ 4. The Dunelawn Court ruled that the plaintiffs’

common law and strict liability claims accrued at the time construction was

completed in 1984 for the owners’ association and at the time of purchase in 1985 in

the case of the plaintiff-owners. Id. ¶ 12. Dunelawn was not a nuisance case;

however, it is instructive here because it suggests that the accrual of a tort claim does

not depend on the harm suffered by the plaintiff, but the timing of the defendant’s

breach of duty. See id. (reasoning that the claims accrued at the time the defendant

“breached a duty”).

Assuming that a special damages-centered accrual regime applies to

permanent nuisance claims, rather than the less forgiving regime implied by Jacques,

Dunelawn would suggest that Mr. Wyman’s permanent nuisance claim accrued at

latest in 1987 when he began lobstering in the Penobscot Bay area that was closed to

fishing by the Maine DMR in 2014 and his claim would still be foreclosed by the

statute of limitations. In fact, however, Dunelawn more likely suggests that Mr.

Wyman’s claim for permanent nuisance accrued in 1982 when the mercury dumping

ceased, not in 1987 when Mr. Wyman got a commercial fishing license and began

fishing in the now-closed area. Mr. Wyman does not suggest that Mallinckrodt or its

predecessors ever breached a duty to him specifically; the duty, if there was one, ran

to the public or to lobster and crab fishermen as a group, First Am. Compl. ¶¶ 72-73,

and so Dunelawn would suggest that any claims based on breach of that duty accrued

at the time of last disposal.23

23 At oral argument, counsel for Mr. Wyman attempted to differentiate Jacques and Dunelawn

by stating that in those cases, “the cause of action was held to exist at the time the conduct occurred.”

Oral Arg. Tr. at 12:16-13:08, 14:10-11. But as the Court pointed out, that is also true here. As Mr.

Wyman agreed, see footnote 20, supra, the lobsters in the areas he was fishing were contaminated with

mercury from at least 1982. Therefore, in 1987, when he began his career as a commercial fisherman,

he had suffered an interference with his special interest in the fishery. Just as with the plaintiff in

Jacques, the full impact of Mr. Wyman’s damages may not have occurred until the closures, but that

does not mean that the claim had not already accrued.

Mr. Wyman also attempts to differentiate Jacques on the grounds that that case deals with a

private nuisance and the accrual regime is different for public nuisances. Oral Arg. Tr. at 14:16-25.

But Jacques refers to “nuisance” generically in its discussion of the applicability of the statute of

limitations, 676 A.2d at 506, and Mr. Wyman points to no public nuisance caselaw suggesting there is

such a distinction. Rather, he points to O’Brien v. Deutsche Bank National Trust Co., 948 F.3d 31 (1st

Cir. 2020), a First Circuit case dealing with unfair and deceptive practices, for the proposition that “a

cause of action accrues when ‘the plaintiff can file suit and obtain relief.’” Id. at 32, 35 (quoting Quality

Cleaning Prods. R.C., Inc. v. SCA Tissue N. Am., LLC, 794 F.3d 200, 203 (1st Cir. 2015)). Mr. Wyman

himself stated that he “wouldn’t put much particular weight” on this case, which just states “the

general rule . . ..” Oral Arg. Tr at 15:19-16:04. He also cites Bernier v. Raymark Industries, Inc., 516

A.2d 534 (Me. 1986), for the proposition that the Law Court has “said there is generally no cause of

action in tort until a plaintiff has suffered an identifiable, compensable injury.” Tr. of Proceedings at

16:18-21. However, the Law Court “has declined to extend the holding in Bernier beyond the asbestos

realm,” Descoteau, 696 F. Supp. 2d at 141, and so the Court is unable to do so here. Lastly, Mr. Wyman

cites Williams v. Ford Motor Company for the proposition that accrual of a tort cause of action occurs

at “[t]he point at which [a] wrongful act produces an injury for which [a] potential plaintiff is entitled

to seek judicial [vindication].” Oral Arg. Tr. at 18:02-04, 19:07-09 (quoting Williams, 342 A.2d at 714).

The Court does not regard Williams as inconsistent with its understanding of Jacques (which in any

event is a later-decided case): Here, Mallinckrodt’s disposal of mercury contaminated the Penobscot

River estuary by 1982, and at that time, a potential plaintiff, such as a fisherman, see Burgess, 370 F.

Supp. at 250, was entitled to seek a judicial remedy.

Mr. Wyman further argues that under Maine law, a plaintiff seeking to vindicate his or her

public nuisance injury must “produce evidence that they have suffered a pecuniary loss injury to the

person or property for which there are quantifiable damages.” Oral Arg. Tr. at 19:23-20:06.

Notwithstanding that the Court is holding that a cause of action for public nuisance may accrue before

a particular plaintiff has suffered special damages, Mr. Wyman’s contention leaves aside the fact that

Put simply, the problem for Mr. Wyman is this: Even if he had not begun

fishing in contaminated waters until March 6, 2012, his claim for permanent

nuisance against Mallinckrodt would still have accrued in 1982 because that is when

Mallinckrodt ceased having liability for mercury dumping. The special injury

requirement is divorced from the statute of limitations inquiry. In a public nuisance,

any breach of duty is to the public; because of this, the date of accrual for a public

nuisance is not tied to the injury of any individual plaintiff, but rather to that of the

public at large.

Mr. Wyman would be able to avoid the six-year statute of limitations if the

discovery rule applied to his public nuisance claim. But unfortunately for Mr.

Wyman, neither the Legislature nor the Law Court has extended the discovery rule

to the law of public nuisance. There is no statutory discovery rule exception to the

six-year statute of limitations for public nuisances and, although the Maine Supreme

Judicial Court has not directly ruled on this question in the context of a public

nuisance, to the extent the Law Court has addressed this issue in Jacques, it has not

extended the discovery rule to nuisance claims.

Mr. Wyman’s argument that he did not suffer the requisite special damages

until the Maine DMR closed his fishing grounds in 2014 is, in the Court’s view,

another way of framing the discovery rule. Once again, as a factual matter, the

lobsters and crabs that Mr. Wyman caught from 1987 to 2014 in the area that the

Maine DMR closed in 2014 would have contained elevated levels of mercury caused

a plaintiff may recover nominal damages in nuisance. See, e.g., Dalphonse v. St. Laurent & Son, Inc.,

2007 ME 53, ¶ 13, 922 A.2d 1200; Brown, 47 Me. at 162.

by Mallinckrodt’s mercury dumping. In other words, as a fisherman for contaminated

lobster and crabs during the period from 1987 to 2014, Mr. Wyman had sustained

special injury but did not know it as of 1987. The Court concludes the discovery rule

is not applicable in Maine in public nuisance cases.

Mr. Wyman also argues for application of the discovery rule to his permanent

nuisance claim by stating that the Law Court is likely to follow the lead of authorities

in Maryland, New Jersey, South Dakota, and Montana who have all held that “[a]

claim for permanent nuisance must be brought within [the number of years specified

in the statute of limitation] of the date when the permanency of the conditions [giving

rise to a nuisance] bec[omes] manifest to a reasonably prudent person,” because the

Law Court cited all these authorities in Jacques. Pls.’ Opp’n at 12-13 (quoting Litz,

76 A.3d at 1087, 294 (Md. 1980)). Mr. Wyman also cites Professor Dan B. Dobbs’

Handbook on the Law of Remedies for the same proposition. Id. at 12.

First, as Mallinckrodt correctly notes, “Jacques cited only two of the six

authorities [Mr. Wyman] reference[d],” Defs.’ Reply at 7, and those it did cite, it cited

“for propositions totally unrelated to the discovery rule.” Id.; see also Jacques, 676

A.2d at 507-08 (citing City of Sioux Falls v. Miller, 492 N.W.2d 116, 119 (S.D. 1992)

for the proposition that “periodic flooding from storm sewer system permanent

nuisance because unlikely to be enjoined due in part to value to community” and DAN

B. DOBBS, HANDBOOK ON THE LAW OF REMEDIES § 5.4 (1973) for factors used in

determining whether something is a permanent or continuing nuisance).

Second, the Court has a strong indication from Dunelawn’s discussion of the

discovery rule, Dunelawn, 2000 ME 94, ¶ 14 (“Although the facts of this case present

a difficult to discover breach, the absence of a fiduciary relationship in these facts

prevents the application of the discovery rule”), and Jacques’ brief reference to the

accrual date for permanent nuisance claims that the Law Court would not apply the

discovery rule to permanent nuisance.

The same logic applies to Mr. Wyman’s permanent strict liability claim. In

Dunelawn, the plaintiff asserted a strict liability claim along with other claims. 2000

ME 94, ¶ 10 (“Dunelawn next contends that their claims for negligence, strict

liability, and breach of warranty of habitability survive application of the general

statute of limitations . . . because they did not accrue until the date of the fire”

(internal footnote omitted)). The Law Court treated the strict liability claim just as

it treated the negligence and breach of warranty claims and concluded that all claims

were barred by the six-year statute of limitations, even though the fire caused by

defective construction in the early 1980s did not occur until 1995. Id. ¶¶ 2-3, 10 n.11.

Dunelawn stands for the position that a claim for strict liability that is not a

continuing tort accrues at the time of a defendant’s breach, not at the time of a

plaintiff’s injury, id. ¶ 12, and clarifies that the discovery rule does not apply to strict

liability claims. Id. ¶ 14; see also Penobscot Energy Recovery Co. v. Bos-Hatten, Inc.,

111 F. Supp. 2d 55, 57 (D. Me. 2000). The Court is bound by the Law Court’s

determination of these issues.

Finally, if accepted, Mr. Wyman’s expansive view of the accrual date for public

nuisance claims would have significant public policy implications. Mr. Wyman

presses the argument that it is illogical to hold that his public nuisance cause of action

accrued before he suffered the particular injury—the closures—for which he now

seeks redress. Oral Arg. Tr. at 13:19-21 (“Under the analysis that [the Court] just

went through, Mr. Wyman would be precluded from bringing a lawsuit before he even

had his license”). But a statute of limitations bars all stale claims, meritorious or not,

because in the judgment of the Legislature, there must be an endpoint to liability.

The obverse is that for claims of public nuisance, under Mr. Wyman’s theory,

the statute of limitations begins again for each potential plaintiff whenever a new

claimant can assert the recent onset of special damage. Thus, under Mr. Wyman’s

theory, if the tree in Brown v. Watson were still obstructing the public highway in

Somerset County, a passerby, even today, could assert she sustained special damage

and sue Jonathan Watson (or his estate) more than one hundred and seventy years

after he created the public nuisance because even though the nuisance existed for

decades, her cause of action had not accrued until she personally sustained special

damages. The Court cannot square Mr. Wyman’s proposition with the Law Court’s

language in Jacques, 676 A.2d at 506, or with its statement that “[t]he purpose of the

statute [of limitations], in general, is to provide repose for potential defendants and

to avoid the necessity of defending stale claims.” Stromberg-Carlson Corp., 2001 ME

11, ¶ 13.

C. Continuing Nuisance

If a nuisance is continuing rather than permanent, then “a new cause of action

accrues each day the hazardous materials remain . . ..” Jacques, 676 A.2d at 506. A

nuisance is continuing when “the thing that constitutes the nuisance ‘is not of such a

permanent nature that it can not readily be removed and thus abated.’”24 Id. at 507

(quoting Caron, 128 Me. at 343). Because the Court finds that Mallinckrodt has

successfully raised the statute of limitations defense as to Mr. Wyman’s permanent

nuisance claim, it is Mr. Wyman’s burden to “make a prima facie showing of facts

that would support the tolling of the statute of limitations.” Halliday v. Henry, 2015

ME 61, ¶ 9, 116 A.3d 1270 (alterations omitted) (quoting Angell v. Hallee, 2012 ME

10, ¶ 11, 36 A.3d 922). Whether a nuisance is readily abatable is a question of fact.

See Jacques, 676 A.2d at 508 (“The abatability of the materials currently on lot B is

a question of fact”). In Jacques, the plaintiffs raised such an issue of fact “by

24 At oral argument, Mr. Wyman raised the Montana case of Burley v. Burlington Northern &

Santa Fe Railway Co., 364 Mont. 77, 273 P.3d 825 (2012), for the proposition that the Law Court’s

“readily abatable” language is better understood as “feasibly abatable.” Oral Arg. Tr. at 31:11-32:17.

In Burley, the Montana Supreme Court stated that “Montana cases that have discussed readily or

easily abatable nuisances used that language more to describe the facts of those cases than to establish

a standard,” and thus “adopt[ed] the reasonably abatable standard for continuing torts as announced

in RESTATEMENT (SECOND) OF TORTS § 839.” 364 Mont. 77, ¶¶ 80, 89. It may be the case that Mr.

Wyman is correct, and if faced with this issue, the Law Court would retreat from the “readily abatable

standard” and apply a lower bar to the determination of whether a nuisance is continuing. But the

Court must take the law as the Law Court has expressed it, and on this issue, the last clear

pronouncement from the Law Court appears to be that a nuisance is continuing when it “is not of such

a permanent nature that it can not readily be removed and thus abated.” Jacques, 676 A.2d at 507

(quoting Caron, 128 Me. at 343).

Mr. Wyman also argues that Jacques does not create a “readily abatable” standard because

footnote three of that case negates that language. Oral Arg. Tr. at 33:05-17. Footnote three states:

“The issue is not before us and thus we do not decide what level of proof is necessary for the Jacques

to successfully argue that the materials that are on lot B are in fact abatable.” Jacques, 676 A.2d at

508 n.3. The Court does not see this language as negating the Law Court’s “readily abatable” standard.

Rather, this language suggests that the Law Court did not wish to weigh in on what level of proof is

necessary to establish that a nuisance is indeed readily abatable before that issue was properly

presented.

producing a 1992 DEP compliance order requiring the responsible parties to submit

a remediation feasibility study. As part of that study the responsible parties [had to]

include at least the option of the removal of all wastes and contaminated soils from

the site.” Id.

Mr. Wyman argues that “the issue of whether the mercury contamination can

be abated and the extent of the abatement that is feasible and reasonable is subject

to ongoing proceedings” in the Federal RCRA Case, and it would therefore be

“premature for this Court to dismiss this case based on one piece of evidence in the

federal RCRA case proceedings in which all the evidence will be considered and a

judgment will be issued.” Pls.’ Opp’n at 10-11. Mallinckrodt counters that Mr.

Wyman’s “focus on whether abatement of the alleged nuisance is feasible. . . . read[s]

the word ‘readily’ out of the standard articulated by the Law Court.” Defs.’ Reply at

13 (emphasis in original). To Mallinckrodt, “[w]hile feasibility of a potential mercury

remediation project remains an open question, the question of whether the alleged

nuisance can ‘readily be removed’ is not.” Id. In Mallinckrodt’s view, the very fact

“[t]hat feasibility of remediation remains an open question after more than 15 years

of study and litigation establishes indisputably that the alleged nuisance cannot

readily be removed.” Id. at 14 (emphasis in original).

The Court agrees with Mr. Wyman that the abatability of mercury

contamination of lobster and crabs in the Maine DMR closed area remains a factual

issue not determinable by summary judgment. Mr. Wyman and Mallinckrodt cite

Amec’s Phase III Report filed in Maine People’s Alliance v. Mallinckrodt, 1:00-cv-

00069-JAW. However, the parties in the Federal RCRA Case have requested a month

of trial time to assess the Amec Phase III Report and to plumb Amec’s findings and

recommendations and that case remains subject to trial.25 See Notice of Hr’g, Maine

People’s All. v. HoltraChem Mf’g, No. 1:00-cv-00069-JAW (D. Me. Mar. 6, 2020), ECF

No. 1061.

The Court is aware, having presided over Phase II of Maine People’s Alliance,

that the scientific issues Amec addressed in its Phase III Report are extraordinarily

dense, nuanced, and complex and involve professional judgments. On its face, the

fact that the parties in Maine People’s Alliance, including Mallinckrodt, have

requested a month of trial time for the Court to hear evidence on Amec’s Phase III

Report must mean that there are unresolved factual issues in this case—especially

since both Mr. Wyman and Mallinckrodt are relying on the Amec Phase III Report to

support their differing positions here. Furthermore, the Law Court in Jacques did

not “decide what level of proof is necessary for [plaintiffs] to successfully argue that

the [alleged nuisance was] in fact abatable.” Jacques, 676 A.2d at 508 n.3.26 In short,

25 More recently, the parties in Maine People’s Alliance have engaged in discussions that they

believe may lead to a resolution of that case, avoiding the need for a lengthy trial. The Court has

accommodated the parties and continued the trial with the hope that they will be able to amicably

resolve this longstanding case. To date, however, the parties have not informed the Court that they

have arrived at a resolution and, if they were to do so, the Court would require that the parties

demonstrate that the resolution, including any plan for abatement, satisfy the public interest. In other

words, the status of the Maine People’s Alliance case does not allow a finding that the elevated mercury

levels in lobsters and crabs in the closure area would or would not be readily abatable.

26 As Mallinckrodt notes, Defs.’ Mot. at 8, the Law Court in Jacques, in dicta, cited Moy v. Bell,

46 Md. App. 364, 416 A.2d 289, 294 (Md. Ct. Spec. App. 1980), for the proposition that “more than

likely any nuisance created can be abated, and therefore more appropriate inquiry is not possibility of

abatement but the likelihood of the abatement.” Jacques, 676 A.2d at 508 n.3. At the same time, the

Maine Supreme Judicial Court, as just noted, declined to decide what level of proof is necessary,

leaving the standard of proof on abatability an open question in Maine. Id.

the Court does not view this case as susceptible to summary judgment on the

abatability issue.

D. Continuing Strict Liability

Neither party has presented the Court with a case in which the Maine

Supreme Judicial Court has extended the continuing tort theory to claims for strict

liability—either common law or statutory—and the Court could not find such a case.

This raises two questions: first, would the Law Court recognize a continuing tort

theory for strict liability, and second, if so, when would such a claim accrue.

1. Continuing Tort Doctrine

The Law Court “has not applied the common law continuing tort doctrine

outside the realm of trespass and nuisance law,” Murphy v. Maine, No. CV-06-62-B-

W, 2006 WL 2514012, at *4 (D. Me. Aug. 29, 2006), and negligence in medical

malpractice cases, Baker v. Farrand, 2011 ME 91, ¶ 29, 26 A.3d 806, though it has

stated in dicta that “[t]he common law continuing tort doctrine may be applied when

no single incident in a chain of tortuous activity can ‘fairly or realistically be identified

as the cause of significant harm.’” McLaughlin, 2003 ME 114, ¶ 23 n.6 (quoting

Fowkes v. Pa. R.R. Co., 264 F.2d 397, 399 (3d Cir. 1959)). The Law Court in

McLaughlin went on to say that “[i]n such cases, the breach of duty is regarded as a

single continuing wrong that terminates when the exposure to the harm terminates.”

Id.

Despite this dictum in McLaughlin, the Law Court has been notably careful

about extending the continuing tort doctrine beyond a few, narrow areas. In Dickey

v. Vermette, the Law Court rejected application of the continuing course of treatment

doctrine by which the limitations period in a medical malpractice case would not

begin to run until the end of the doctor-patient relationship, finding that the

Legislature’s definition of when a cause of action accrued under the Health Security

Act foreclosed application of the doctrine. Dickey v. Vermette, 2008 ME 179, ¶¶ 1, 7,

960 A.2d 1178. In Baker v. Farrand, the Law Court expanded the continuing tort

doctrine to cases involving a continuing course of negligent treatment, basing its

analysis “on the language and authority of the Health Security Act and not the

common law,” and finding that “in cases involving a continuing course of negligent

treatment, the Act allows for the possibility that two or more negligent acts or

omissions might combine to proximately cause a patient’s injury.” 2011 ME 91, ¶¶

25, 30. In Packgen, Inc. 2019 ME 90, the Law Court declined to extend the continuing

tort doctrine to legal malpractice claims, stating that “[w]ithout similar authorizing

language [to that discussed in Baker] on which to draw, we are unable to conclude

that the continuing negligence doctrine is applicable to claims for legal malpractice.”

2019 ME 90, ¶¶ 34-35. With this background, the Court turns to the Law Court’s

language in McLaughlin.

In McLaughlin, the Law Court did not consider whether a cause of action

sounding in negligence and brought under the Maine Tort Claims Act constituted a

continuing tort, as the theory was not alleged in the plaintiff’s complaint and the

doctrine had “never [been] applied in th[at] context.” 2003 ME 114, ¶ 23 n.6. The

Court quoted a Third Circuit case for its formulation of the continuing tort doctrine

but stated only that the doctrine “may” be applied in such circumstances. Id. This

delimiting word, “may,” suggests that the Maine Supreme Judicial Court did not

intend McLaughlin to open the floodgates of continuing torts to all common law tort

causes of action. Rather, given the subsequent history of the continuing tort doctrine

in the Law Court, it is likely that the Law Court was merely indicating a general

receptivity to future arguments about its applicability. This interpretation is

supported by the fact that in over sixteen years since the McLaughlin decision, the

Law Court has not expanded the continuing tort doctrine to any common law cause

of action—despite opportunities to do so in Dickey, Baker, and Packgen—and has only

expanded it to statutory causes of action in the presence of supportive language from

the legislature. The Court sees no indication that this hesitancy to impose continuing

tort liability in the absence of legislative authorization would not extend to common

law claims for strict liability.

Mr. Wyman also brings his strict liability claim under 38 M.R.S. § 1319-U(5).

First. Am. Compl. ¶¶ 63-64. Section 1319-U(5) states:

A person who disposes of or treats hazardous waste, when that disposal

or treatment, in fact, endangers the health, safety or welfare of another,

is liable in a civil suit for all resulting damages. It is not necessary to

prove negligence.

For the purposes of this section, damages are limited to damages to real

estate or personal property or loss of income directly or indirectly as a

result of a disposal or treatment of hazardous wastes. Damages awarded

may be mitigated if the disposal or treatment is the result of an act of

war or an act of God.

Nothing in this section shall preclude any action for damages which may

be maintained under the common law or the laws of this State.

38 M.R.S. § 1319-U(5).

Two portions of this section merit analysis. The first is “[a] person who

disposes of or treats hazardous waste, when that disposal or treatment, in fact,

endangers the health, safety or welfare of another, is liable in a civil suit for all

resulting damages.” Id. At first blush, use of the word “disposes” is ambiguous as to

whether it refers to a single discrete act of disposal or multiple disposals. The later

phrase “when that disposal or treatment,” however, indicates that the Legislature is

referring to a discrete act, rather than a continuing course of conduct. This becomes

clearer when one considers the language in the second portion of this section that

“damages are limited to damages to real estate or personal property or loss of income

directly or indirectly as a result of a disposal or treatment.” This language is similar

to the language of the statute at issue in Packgen, 14 M.R.S. § 753-B, which refers to

a singular “act or omission,” interpreted by the Law Court as foreclosing application

of the continuing tort doctrine, 2019 ME 90, ¶ 35, and unlike the language at issue in

Baker, which spoke of “acts or omissions” and was interpreted as allowing a single

cause of action to lie where multiple acts proximately caused the complained-of

injury. 2011 ME 91, ¶¶ 23-24. The use of adjectives like “a” and “that” to modify

“disposal” and “treatment” brings this statute more in line with the one in Packgen,

and indicates that the Legislature did not intend that “a single cause of action . . .

arise from multiple” acts of disposal.27 Baker, 2011 ME 91, ¶ 24.

27 At oral argument, Mr. Wyman argued that the phrase “that disposal” refers to “a person who

disposes” rather than a single act of disposal. Oral Arg. Tr. at 54:11-13. The Court disagrees with

this interpretation. The statute refers both to “[a] person” and “a disposal.” 38 M.R.S. § 1319-U(5).

Both the act and the actor are singular.

However, with regard to both the statutory and common-law strict liability

claims, the Court is reluctant, “[a]s a federal court sitting in diversity . . . to expand

Maine law,” Douglas v. York Cty., 433 F.3d 143, 149 (1st Cir. 2005), particularly

where, as here, the issue of abatability is going to be factually resolved and may

render resolution of the state law issues unnecessary. The Court leaves the question

of whether the Law Court would hold that strict liability may be a continuing tort for

another day.

2. Accrual of Claim

Even if the Law Court were to recognize a continuing tort of strict liability, the

question remains whether the statute of limitations on Mr. Wyman’s strict liability

claim would still have run prior to his bringing this action. In Fowkes, the case quoted

by the Law Court in McLaughlin, 2003 ME 114, ¶ 23 n.6, the plaintiff’s job required

him to use a large air hammer which, due to an accumulation of water in the air lines

leading to the hammer, would occasionally stop suddenly, causing the plaintiff a

severe jolt. Fowkes, 264 F.2d at 398. The plaintiff experienced these jolts until he

“successfully bid for lighter work involving the use of a smaller air hammer . . ..” Id.

He later became aware that he had developed an arthritic condition in his shoulder

and back. Id. Because there was “no evidence that plaintiff ever suffered a single

seriously injurious jolt,” the Third Circuit stated that “no one incident was or could

In addition, Mr. Wyman made a policy argument that proving damages from discrete acts or

periods of disposal is complicated, and thus the statute should be interpreted as implying a continuing

tort. Oral Arg. Tr. at 55:12-56:07. But in the face of plain statutory language referring to discrete

acts, the Court cannot read continuing tort liability into the Legislature’s words, particularly in light

of the Law Court’s admonition that continuing liability is not available under a statute without clear

“authorizing language . . ..” Packgen, 2019 ME 90, ¶ 35.

fairly or realistically be identified as the cause of significant harm” and found that

“the [three year] statute of limitations did not begin to run on the . . . claim before the

plaintiff was relieved of jolting work with the heavy hammer,” and therefore the

plaintiff’s claim—filed within three years of being relieved of duties related to the

heavy hammer—was timely. Id. at 399. The critical factor in Fowkes, in other words,

was that at least one tortious act in the chain of continuing activity occurred within

the limitations period.

The logic in Fowkes lines up with the Law Court’s dictum in Packgen. In

Packgen, the Law Court stated that “[u]nder a continuing negligence theory, the

statute of limitations period does ‘not begin to run until the date of the last act of

negligence’—the date of last injury.” 2019 ME 90, ¶ 2 n.4. Even if the Law Court

were to recognize a continuing tort theory of strict liability, there must be an act

within the limitations period for the claim to not be time-barred.

The question thus becomes what constitutes an “act” for the purpose of a strict

liability claim premised on disposal of hazardous waste. Is it the act of disposal, or

like with nuisance, is it the act of leaving the hazardous waste to continue causing

harm, even though the hazardous waste is readily abatable? If the former, Mr.

Wyman’s strict liability claim would have accrued, even under a continuing tort

theory, in 1982. If the latter, then, as discussed above, a jury question remains as to

whether the mercury contamination caused by Mallinckrodt’s predecessors is readily

abatable.

Two District of Maine cases have discussed the accrual of strict liability claims

and reached opposite conclusions: Lefebvre v. Central Maine Power Co., 7 F. Supp.

2d 64 (D. Me. 1998), and Citizens Communications, 2004 WL 1572612. In Lefebvre,

the defendant owned a piece of property from 1919 until 1949 on which it “generated

and disposed of hazardous waste.” 7 F. Supp. 2d at 66. The plaintiff ultimately

purchased the property more than thirty-five years later, in 1985, though he was

unaware of the contamination at the time of purchase. Id. at 67. The plaintiff sued,

alleging various claims including a common law strict liability claim. Id. at 66. The

district court concluded that this claim was not barred by the statute of limitations

because the allegations of “continuing harm caused by [the d]efendant’s disposal”

made “the Maine Law Court’s analysis in Jacques persuasive in the context” of the

plaintiff’s strict liability claim. Id. at 72.

In Citizens Communications, the plaintiff purchased “a parcel of land fronting

on Dunnett’s Cove in the Penobscot River” which was contaminated with tar slick due

to activities by the defendant that had ceased at least forty years prior to the case,

being decided. 2004 WL 1572612, at *1-2, *8. While the Court allowed the public

nuisance claim to go forward, it found that the strict liability claim was barred by the

statute of limitations because “[u]nlike continuing trespass and nuisance theories, in

which a claimant’s injury stems from the ongoing existence of a harmful condition

that could be removed, strict liability theory is premised on the abnormally dangerous

nature of the defendant’s acts, not the conditions created by those acts.” Id. at *8

(emphasis in original). Thus in the Citizens Communications Court’s view, “the

rationale of Jacques . . . does not logically extend to the [plaintiff’s] strict liability

claim,” though it noted this point of disagreement with Lefebvre. Id.

Once again, with regard to the common law strict liability claim, the Court

does not see any efficiency gains to be made by resolving this question of state law

prior to the resolution of the abatability question, which may render such an analysis

moot. The Court therefore denies Mallinckrodt summary judgment on the question

of when a common law continuing tort strict liability claim accrues. However, the

Court regards the language of 38 M.R.S. § 1319-U(5) as very clear: Such a cause of

action accrues when someone “disposes of or treats hazardous waste” in such a way

that the disposal or treatment “endangers the health, safety or welfare of another

. . ..” The statute does not speak of a failure to abate or give any indication that such

a failure would be relevant to the accrual analysis for such a claim. Rather, liability

is predicated on acts of “dispos[al] or treat[ment] . . ..” Id. In the absence of such an

act within the limitations period, as discussed above, the Court concludes that Mr.

Wyman’s statutory continuing strict liability claim is time-barred.28

28 The Court does not regard this reasoning as incompatible with Lefebvre, which is silent as to

whether 38 M.R.S. § 1319-U(5) is implicated. In fact, it is unlikely that a statutory strict liability claim

could have been brought in that case. In Lefebvre, the last act of disposal of hazardous waste by the

defendant took place in 1949. 7 F. Supp. 2d at 66. Section 1319-U was not enacted until 1981 and

was not effective until September of that year. AN ACT TO AMEND THE HAZARDOUS WASTE STATUTE TO

MEET CERTAIN REQUIREMENTS FOR DELEGATION OF THE FEDERAL PROGRAM AND TO PROVIDE INTERNAL

CONSISTENCY, 1981 ME. LAWS 693. In Maine, “all statutes will be considered to have a prospective

operation only, unless the legislative intent to the contrary is clearly expressed or necessarily implied

from the language used.” Morrill v. Me. Tpk. Auth., 2009 ME 116, ¶ 5, 983 A.2d 1065, 1067 (quoting

Terry v. St. Regis Paper Co., 459 A.2d 1106, 1109 (Me. 1983)). In Lefebvre, there were no acts of

disposal for more than thirty years prior to the effective date of the statute, so even under a continuing

tort theory, liability could not have attached under the statute.

VI. CONCLUSION

The Court GRANTS in part and DENIES in part Mallinckrodt’s Cross-Motion

for Partial Summary Judgment (ECF No. 64). The Court GRANTS summary

judgment in favor of Mallinckrodt on Counts II and IV, as well as Count III insofar

as Count III alleges a statutory claim of strict liability. The Court DENIES

Mallinckrodt summary judgment on Count I and on Count III insofar as Count III

alleges a common law claim of strict liability.

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

Dated this 22nd day of April, 2020