# Faine v. Zep, Inc.

> District Court, E.D. New York · December 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10305414

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305414

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
IN RE: BROOKHAVEN NATIONAL
LABORATORY TRICHLOROETHYLENE (“TCE”) MEMORANDUM OF
CASES. DECISION & ORDER

Civil Action Nos.
19-CV-4839 (GRB)(RML)
19-CV-5475 (GRB)(RML)
19-CV-5729 (GRB)(RML)1

--------------------------------------------------------------X

GARY R. BROWN, United States District Judge:
The amended complaints in these cases chronicle the alleged history of use and misuse of
trichloroethylene (“TCE”) at Brookhaven National Laboratory (“BNL” or “the Lab”), and the
exposure of these plaintiffs, others and the surrounding environs to this carcinogenic chemical, as
well as the resulting injuries. These allegations, accepted as true for the purposes of the instant
motions, provide a disturbing and comprehensive chronicle of dangerous actions and inaction in
this regard.
The complaints allege that BNL delegated responsibility for safe handling and mitigation
of certain toxic and radioactive substances to its “operating contractors”—Associated Universities,
Inc. (“AUI”) and Brookhaven Science Associates (“BSA”) (collectively, “employer-
defendants”)—during the relevant periods. See, e.g., Amended Complaint at ¶¶ 65-76, Marino v.
Brookhaven Science Associates, L.L.C. et al, No. 19-CV-4839 (filed Oct. 9, 2019), ECF No. 19.

1 While motions to consolidate these actions are pending, as discussed herein, these motions, involving numerous
pages of similar and, at times, identical filings, are being addressed in a single opinion for the purpose of efficiency.
Going forward, counsel are directed to litigate these cases in a consolidated fashion to reduce expense and burden on
the parties and the Court. This directive includes additional cases—Torre v. Brookhaven Science Associates, et al.,
No. 20-CV-3066 (GRB)(RML), McGowan v. Brookhaven Science Associates, No. 20-CV-5729 (GRB)(RML),
Hobson, et al. v. ZEP, Inc., No. 20-CV-3055 (GRB)(RML)—which, according to counsel, grow out of the same
nucleus of facts.
Specifically, defendant AUI was contracted to serve as the “operating contractor” at BNL from
1947-1998, while defendant BSA filled that role thereafter. Id. One of the dangerous substances
for which the employer-defendants were responsible was TCE in various forms, which included
products manufactured, marketed, sold and shipped by defendants Dow Chemical Co. (“Dow”)

and Zep, Inc.(“Zep”) (together with the employer-defendants, “defendants”). Id. at ¶¶ 54, 57, 99,
167-70. The complaints charge that the employer-defendants used such substances extensively at
BNL despite known toxicity to humans, and that the use of such substances at the Lab “caused
severe and pervasive pollution, contamination and exposure risks at the site.” Id. at ¶¶ 108-110.
Extensive TCE use by AUI and BSA included purchasing, delivering, storing, dispensing and
deploying the substance in spray cans, bottles, 55-gallon drums and liquid bulk delivery for tank
storage. Id. at ¶ 118. Particularly relevant here was the employer-defendants’ employment of TCE
to perform degreasing and cleaning tasks in connection with the Lab’s supercomputers, including
cleaning head drives and tape spool changes, a function each plaintiff, as employees of the
employer-defendants or their contractors, performed 96 times per day during a given eight-hour

shift. Id. at ¶ 120.
According to the complaints, health risks from TCE had been suspected since the 1950s,
and since the 1970s, officials banned its use in connection with food products and pharmaceutical
production throughout the world. Id. at ¶ 127. By the 1970s, it was considered a probable or
suspected human carcinogen. Id. at ¶¶ 128-29. Remarkably, in 1978, an article was published by
researchers at BNL exploring and confirming the toxicity of TCE. Id. at ¶ 130. The ubiquity of
TCE—along with other contaminants—at the site led to the declaration of BNL as a Superfund
Site in 1989. Id. at ¶ 131. Notwithstanding this history, it was not until November 3, 2016 that
the National Toxicology Program announced that TCE was to be classified as a “known human
carcinogen.” Verified Amended Complaint at ¶ 281, Yuhas v. Associated U., Inc. et al, No. 19-
CV-5475 (filed September 26, 2019), ECF No. 1-2.
Nevertheless, continued knowledge about the hazards of TCE led to the Department of
Energy implementing a ban in or about 1990, prohibiting its use at any Department of Energy

facility, as reported to all U.S. laboratories nationwide. Amended Complaint at ¶¶ 132-33, Marino
v. Brookhaven Science Associates, L.L.C. et al, No. 19-CV-4839 (filed Oct. 9, 2019), ECF No. 19.
In a most troubling allegation, the complaints report that, following the announcement of the DOE
ban, AUI managers instructed employees to “stockpile” TCE, describing it as an “optimal choice”
for degreasing, cleaning and disinfection throughout the BNL site. Id. at ¶ 133. As a result, TCE
products were stockpiled and used at the BNL site for the next sixteen years unabated. Id. at ¶
134. AUI and BSA failed to provide workers with adequate protection gear and training in
connection with the use of TCE. Verified Complaint at ¶ 77, Faine et al v. Zep, Inc. et al, No. 19-
CV-5729 (filed Oct. 10, 2019), ECF No. 1-1. Moreover, the complaints charge that despite known
dangers associated with their products, Dow and Zep failed to properly and adequately warn users,

including plaintiffs. Id. at ¶¶ 73-76.
The ardent acquisition and deployment of TCE at the facility led to pervasive pollution and
contamination risks, including an identified “TCE Spill Area” in the middle of the Lab campus.
Amended Complaint at ¶ 149, Marino v. Brookhaven Science Associates, L.L.C. et al, No. 19-CV-
4839 (filed Oct. 9, 2019), ECF No. 19. Not only was the Lab site affected, but TCE has also been
identified as part of the infamous groundwater “plumes” around the facility, with contamination
uncovered in the Magothy aquifer.2 Id. at ¶¶ 151-161.
While the complaints share a large quantum of common material, certain individual facts
bear on the instant motions:

Plaintiff Marino
Marino, who has brought suit against BSA, AUI, Zep and Dow, worked as a computer
technician at various locations throughout the site. Id. at ¶ 52. He was employed by Carlyle
Technical Services, L.L.C., and Entex, Inc. and assigned by them to work at BNL from September
20, 1999 to December 31, 2000 as a computer technician repairing, reconfiguring, and servicing
computers and supercomputers. Id. at ¶¶ 52, 173. During this period, BSA was the Lab’s
“operating contractor.” Id. at ¶ 173. During his time at the lab, Marino used TCE in various forms,
including two ZEP products and Dow’s Triclene. Id. at ¶ 176. Marino used TCE “hundreds of
times per day over an 8 hour plus shift” as directed by BNL managers and employees. Id. at ¶¶
179-184. On one occasion, faced with a large quantity of TCE deployed by various workers, he

was, in apparent attempt at “gallows humor,” reassured by a BNL manager that “the radiation in
this place will kill you before the fumes from that stuff does.” Id. at ¶ 188.
In March 2009, Marino was diagnosed with clear cell renal carcinoma, more commonly
referred to as kidney cancer, in his right kidney. Id. at ¶ 210. His right kidney and cancerous tumor

2 See Town of Brookhaven v. Sills Rd. Realty LLC, No. CV 14-2286 GRB, 2014 WL 2854659, at *5 (E.D.N.Y. June
23, 2014) (“These aquifers, the Upper Glacial, Magothy and Lloyd, are more or less geographically coextensive and
are layered at different depths underground. The Upper Glacial aquifer, closest to the surface, is the easiest to tap but
the least pure and supplies half of Suffolk's drinking water; beneath it is the purer Magothy aquifer, which supplies
100% of the water in Nassau County and the other half of Suffolk's drinking water; and the Lloyd aquifer, the deepest
of the three, requires special permits to tap and is considered the water source of last resort.”).
were then surgically removed. Id. at ¶ 212. Years of subsequent monitoring proved negative for
reoccurrence. Id. at ¶ 213. In 2015, an MRI revealed left kidney cysts. It was not, however, until
March 1, 2018 that he developed chronic kidney disease in his left kidney. Id. at ¶ 214. Marino’s
complaint alleges that his physician determined that the kidney cancer and the chronic kidney

disease “were part of the same toxic renal injury – TCE exposure.” Id. at ¶¶ 210-215.
Marino submitted an application for benefits under the EEOICPA in or about February
2017. Id. at ¶ 308. The application for benefits included a letter from Plaintiff’s physician dated
December 19, 2016 indicating that Plaintiff’s use of TCE aerosol spray degreasers as part of his
daily work routine at BNL was a contributor to his kidney cancer. Id. at ¶ 306. The Department of
Labor initially denied Plaintiff’s claim for benefits, but following Plaintiff’s appeal, the EEOICPA
Final Adjudication Branch approved his claim for benefits under the program on April 6, 2018. Id.
at ¶¶ 308-316.

Plaintiff Yuhas

Yuhas, who has filed an action against AUI, Zep and Dow, worked at BNL as a computer
operator, information technology department shift supervisor and telecommunications technician
from 1964-2007. Verified Amended Complaint at ¶¶ 159-161, Yuhas v. Associated U., Inc. et al,
No. 19-CV-5475 (filed September 26, 2019), ECF No. 1-2. During most of that period, he was
employed by AUI, but after 1998, he became an employee of BSA. Id. at ¶¶ 160-61. Throughout
his 43 years of employment at the Lab, he was required to use TCE cleaning solvents “hundreds
of times per day.” Id. at ¶¶ 165-69. TCE was used in a “‘heavy’ and pervasive” manner, often in
aerosol form in poorly ventilated spaces and without protective equipment. Id. at ¶¶ 171-72, 180.
In 2008, Yuhas was diagnosed with renal cystic disease; subsequent diagnoses included
chronic kidney disease, COPD and Crohn’s disease, all allegedly resulting from TCE exposure.
¶¶194-96. Yuhas first learned that his injuries were linked to his TCE exposure at BNL— as well
as the identity of the products and parties that potentially led to his injuries— on or about October

25, 2018, when he was provided the opportunity to review the BNL Site Exposure Matrices for
certain buildings at BNL. Id. at ¶¶ 280-99.

The Faine and Devito Plaintiffs
Plaintiff Ruth Faine worked as a computer operator and technician at BNL from 1966-
1995, employed by AUI in its role as the Lab’s operating contractor. Verified Complaint at ¶ 29,
Faine et al v. Zep, Inc. et al, No. 19-CV-5729 (filed Oct. 10, 2019), ECF No. 1-1. As part of her
job responsibilities, she was exposed to TCE on a daily basis, using solvents containing the
carcinogen at least 96 times during each 8-hour shift. Id. In 1995, she was diagnosed with kidney
failure, which was treated with dialysis and, later, a kidney transplant. Id. at ¶ 30. Her kidney

failure later recurred, and she is currently awaiting a second transplant. Id. Plaintiff Frank Devito
also worked as a computer operator, technician and shift supervisor, and was also employed by
AUI from 1962-1994. Id. at ¶ 31. He also routinely used TCE products at the direction of AUI
managers at least 96 times per day. Id. In 1994, Devito was diagnosed with unilateral kidney
failure. Id. at ¶ 147. Later, he developed bilateral kidney failure and required renal dialysis. Id. at
¶ 150.
As with the plaintiffs in the related actions, Faine and Devito allege that the role of TCE
as a carcinogen and, more specifically, its link to kidney ailments, remained entirely unknown
until November 3, 2016, with the publication of the 14th Report on Carcinogens, “identifying TCE
as a cause of kidney cancer and toxic renal injury.” Id. at ¶ 202-03, 211; see also Amended
Complaint at ¶¶ 304-05, Marino v. Brookhaven Science Associates, L.L.C. et al, No. 19-CV-4839
(filed Oct. 9, 2019), ECF No. 19; Verified Amended Complaint at ¶¶ 287-88, 296, Yuhas v.
Associated U., Inc. et al, No. 19-CV-5475 (filed September 26, 2019), ECF No. 1-2. Further,

Faine and Devito allege that they remained unaware “that TCE caused or contributed to their
kidney diseases . . . until sometime after September 12, 2018,” at which time they were provided
with the BNL Matrices discussed above. Verified Complaint at ¶¶ 204-05, Faine et al v. Zep, Inc.
et al, No. 19-CV-5729 (filed Oct. 10, 2019), ECF No. 1-1. The Site Exposure Matrices enabled
them, for the first time, to identify the places and nature of their exposure to TCE and the causal
role of the substance in their diseases, as well as the identities of the subject products, the
manufacturers and other potentially relevant parties. Id. at ¶¶ 204-213.
On behalf of the aforementioned plaintiffs, the complaints purport to set forth causes of
action for negligence, products liability, abnormally dangerous activities, gross negligence and
fraudulent concealment. Additionally, plaintiff Faine’s husband, Vernon Faine and plaintiff

Devito’s wife, Helen Devito, purport to set forth claims for loss of consortium and services. Id. at
¶¶ 281-295.

DISCUSSION
I. Statute of Limitation Questions
In a barrage of filings, defendants seek dismissal of plaintiffs’ claims based, in large
measure, on New York State statute of limitations provisions that accrue upon the experience of
symptomology by a plaintiff, rather than the plaintiff’s discovery of the cause of such injury. See,
e.g., Motion to Dismiss at 7-9, Marino v. Brookhaven Science Associates, L.L.C. et al, No. 19-CV-
4839 (filed May 22, 2020), ECF No. 57 (citing N.Y. C.P.L.R. § 214-c(2)). Defendants further
stress that the “unknown cause” exception contained in § 214-c(4) does not save plaintiffs’ claims
because the instant cases, at least under this claim accrual framework, generally involve periods
that extend past the maximum time permitted under that exception. Id. at 9-11. However, despite

plaintiffs’ weighty submissions on the matter, defendants give short shrift to the statute of
limitations provisions of CERCLA, found at 42 U.S.C. § 9658, which preempt accrual dates
established in state law statutes of limitations, allowing a plaintiff to file claims within one year
after acquiring knowledge of the cause of his or her injury.
The Second Circuit has provided very specific guidance concerning the scope and
applicability of the CERCLA statute of limitations provisions:
The language of § 9658(a)(1), specifying that the applicable state limitations period
“shall commence at the federally required commencement date in lieu of” an
“earlier” date provided by state law, makes it indisputably clear that Congress
intended, in the cases to which § 9658 applies, that the [federally required
commencement date, a/k/a the “FRCD”] preempt[s] state law accrual rules if, under
those rules, accrual would occur earlier than the date on which the cause of the
personal injury was, or reasonably should have been, known to be the hazardous
substance. Accord Union Pacific R.R. Co. v. Reilly Industries, Inc., 215 F.3d 830,
840 (8th Cir.2000). Cf. ABB Industrial Systems, Inc. v. Prime Technology, Inc., 120
F.3d 351, 360 n. 5 (2d Cir.1997) (“Under 42 U.S.C. § 9658, if a claim is brought
under state law for property damages caused by hazardous chemicals and state law
does not provide a discovery rule, the state statute of limitations cannot begin to
run until the plaintiff knew or should have known that the damages were caused by
hazardous chemicals.”); Tucker v. Southern Wood Piedmont Co., 28 F.3d 1089,
1091 (11th Cir.1994) (same).

Freier v. Westinghouse Elec. Corp., 303 F.3d 176, 196-97 (2d Cir. 2002).
In response to this provision, which has been clearly construed in binding precedent,
defendants fashion three arguments. First, defendants contend, in various forms, that plaintiffs do
not and cannot assert a CERCLA claim against defendants for a variety of reasons. See, e.g.,
Motion to Dismiss at 10-15, Yuhas v. Associated U., Inc. et al, No. 19-CV-5475 (filed May 22,
2020), ECF No. 36. This contention is undermined by both the statutory language and applicable
case law: a plaintiff need not assert, nor be in a position to assert, a CERCLA claim in order to
take advantage of the FRCD. Kowalski v. Goodyear Tire & Rubber Co., 841 F. Supp. 104, 108
(W.D.N.Y. 1994) (“The plain reading of § 9658 in the context of the mandate which resulted in

the SARA amendments suggests that the preemption of a state statute of limitations was passed as
an additional remedy, not one confined to actual CERCLA actions.”). Freier plainly supports the
principle that the FRCD applies to state law claims in absence of an actual or potential CERCLA
claim because, in that case, “[p]laintiffs' claims [were] based on state law negligence, strict
liability, gross negligence, loss of consortium, and wrongful death.”3 In re Pfohl Bros. Landfill
Litig., 26 F. Supp. 2d 512, 517 (W.D.N.Y. 1998), vacated on other grounds sub nom. Freier v.
Westinghouse Elec. Corp., 303 F.3d 176 (2d Cir. 2002). While other courts have found to the
contrary, review of these cases prove unpersuasive. See, e.g., Becker v. City of Fort Myers, No.
218CV195FTM38UAM, 2019 WL 2929326, at *4 (M.D. Fla. July 8, 2019) (criticizing the Fourth
Circuit’s Blankenship analysis holding that “plaintiffs must be able to assert a CERCLA claim for

§ 9658 to apply,” noting that “[n]o statutory basis for that interpretation exists. [T]hose phantom
requirements . . . cannot square with the statute’s plain language which does not include a
CERCLA claim or cleanup costs among its requirements” (citations omitted)).
Second, defendants observe that § 9658(a)(1) applies “only if there has been a ‘release’
into the ‘environment’ from a ‘facility.’” See, e.g., Motion to Dismiss at 15-16, Yuhas v. Associated
U., Inc. et al, No. 19-CV-5475 (filed May 22, 2020), ECF No. 36 (quoting Ruffing ex rel. Calton
v Union Carbide Corp., 193 Misc. 2d 350, 358 (Sup. Ct. Westchester Cty. Aug. 12, 2002), aff’d

3 Not to mention the fact that, in establishing the scope of the CERCLA statute of limitations provisions in Freier, the
Second Circuit cited as support an Eleventh Circuit case clearly holding that § 9658 applied to claims “brought under
state law.” Freier, 303 F.3d at 197.
on other grounds sub nom. Ruffing v. Union Carbide Corp., 1 A.D.3d 339 (2d Dep’t 2003)).
Defendants further assert plaintiffs’ claims “are based exclusively on … alleged exposure to . . .
TCE-containing cleaning solvents while working inside BNL’s buildings, structures, and
facilities” and that such intra-structural releases of toxin fail to satisfy the requisites of the statute.

Id. at 16-18. In support of this construction of federal law, defendants rely upon a decision of a
lower state court and another of a district court outside this Circuit. Id. at 16 (citing Ruffing , 193
Misc. 2d at358, 362-64; Cyker v. Four Seasons Hotels Ltd., 1991 WL 1401, at *2 (D. Mass. Jan.
3, 1991)).4 To be sure, although the Second Circuit has not yet spoken on the matter, other courts
within this Circuit have also held that § 9658(a)(1) only applies to injuries arising from exposure
to substances released into the environment, not exposure within an employer’s facilities. See
Garner v. NGC Bodily Injury Tr., No. 11-CV-6567-CJS, 2012 WL 3560816, at *5 (W.D.N.Y.
Aug. 16, 2012); Hanley v. Dow Chem. Co., No. 96CV0483(LEK/DNH), 1999 WL 33603133
(N.D.N.Y. Mar. 3, 1999); Wagar v. BASF Corp., No. 88-CV-90, 1990 WL 124069, at *3-4
(N.D.N.Y. Aug. 24, 1990); but see Kowalski, 841 F. Supp. at 108 (“This court agrees that the

remedial purposes of the statute and the language concerning the release of chemicals into the
environment can be read to include hazardous chemicals carried out of the workplace on
employees' person and clothing which have the potential of causing injuries to those who come in
contact with such employees.”). Nevertheless, the circumstances here—as alleged in the

4 For avoidance of doubt, the Second Department did not adopt the lower court’s construction of “release” under
CERCLA, though defendant Dow did not make this clear in its papers. Ruffing v. Union Carbide Corp., 1 A.D.3d
339, 341, 766 N.Y.S.2d 439, 441 (2003) (“Turning to the merits, the proposed amended complaint essentially alleges
that William Pfleging carried out of the workplace and surrounding area hazardous substances on his clothing and
within his body to which his wife and daughter in utero were exposed. Even assuming that 42 USC § 9658 applies so
as to render the plaintiffs' claims timely, the proposed amended complaint fails to state a cognizable cause of action
against IBM under either common-law negligence or strict products liability.” (emphasis added)).
complaints—are drastically different from those at issue in these cases, given the scope of the
contamination alleged both inside and outside of the BNL facilities.
Indeed, this argument fundamentally mischaracterizes the allegations of the complaints,
which contain numerous allegations of releases of TCE into the environment from the BNL

facilities. See, e.g., Amended Complaint at ¶ 55, Marino v. Brookhaven Science Associates, L.L.C.
et al, No. 19-CV-4839 (filed Oct. 9, 2019), ECF No. 19; Verified Amended Complaint at ¶ 42,
Yuhas v. Associated U., Inc. et al, No. 19-CV-5475 (filed September 26, 2019), ECF No. 1-2;
Verified Complaint at ¶ 80, Faine et al v. Zep, Inc. et al, No. 19-CV-5729 (filed Oct. 10, 2019),
ECF No. 1-1. Even assuming the Court accepts defendants’ legal construction, to prevail,
defendants would have to persuade this Court to conclude that plaintiffs’ injuries arose solely due
to inhalation of TCE released into the ambient air of the facilities as opposed to, by way of
example, drinking contaminated water or breathing outside air. The law, which requires the
acceptance of the allegations as true at this early juncture, does not permit such speculative fact
finding.

Third, defendants contend that, even if applicable, plaintiffs failed to satisfy the filing
requirements of CERCLA as more than a year elapsed from the date plaintiffs “should have
known” that TCE caused their allegedly grievous injury. See, e.g., Motion to Dismiss at 18-20,
Yuhas v. Associated U., Inc. et al, No. 19-CV-5475 (filed May 22, 2020), ECF No. 36. Upon what
date “should” plaintiffs have gained such knowledge? According to defendants, one of three: (1)
the release by the U.S. Department of Health and Human Services of the 14th Report on
Carcinogens in November 2016;5 (2) an EPA proposed ban on TCE in January 2017 and/or (3)
“several national publicized media reports regarding TCE’s hazardous effects.” Id. at 19 (citing
In re Burbank Envtl. Litig., 42 F.Supp.2d 976, 981 (C.D. Cal. 1998)). Amalgamating these three
events, defendants calculate a date of October 2018 as the expiry of CERCLA’s one-year period

from when plaintiff Yuhas, for example, “should” have known the cause of his ailments, and noting
that the Yuhas action was not filed until August 2019.6 Id. at 20. The Amended Complaint, by
contrast, alleges that plaintiff Yuhas did not learn about the products that allegedly caused his
illness until he reviewed, with his attorneys, certain technical documents in October 2018.7
Verified Amended Complaint at ¶¶ 280-84, Yuhas v. Associated U., Inc. et al, No. 19-CV-5475
(filed September 26, 2019), ECF No. 1-2.
The standard to which defendants would hold plaintiffs seems inconsistent with the
language of the statute and its construction. Again, the statutory language and binding precedent
from the Second Circuit focuses the inquiry upon “the date the plaintiff knew (or reasonably should
have known) that the personal injury or property damages ... were caused or contributed to by the

hazardous substance or pollutant or contaminant concerned.” Freier v. Westinghouse Elec. Corp.,
303 F.3d at 184 (quoting § 9658(b)(4)(A)).

5 One measure of the length and complexity of this document is provided by an accompanying summary chart entitled
“Substances Listed in the Fourteenth Report on Carcinogens,” which consists of a five-page, single spaced list of
chemicals. See U.S. Dep’t of Health & Human Servs., Substances Listed in the Fourteenth Report on Carcinogens,
National Toxicology Project (Nov. 3, 2016), https://ntp.niehs.nih.gov/ntp/roc/content/listed_substances_508.pdf.
“Trichloroethylene” appears on this list without any of the trade or commercial names of the products containing this
substance.
6 Defendants allege a similar expiry date for the Faine action, which was filed in September 2019; as for the Marino
action, defendants allege that the expiry of the one-year period was December 2017, while it was ultimately filed in
July 2019.
7 Plaintiffs Marino and Faine & Devito allege similar dates of discovery, all within one year of the filing of their
respective complaints. See Amended Complaint at ¶¶ 319-20, Marino v. Brookhaven Science Associates, L.L.C. et al,
No. 19-CV-4839 (filed Oct. 9, 2019), ECF No. 19; Verified Complaint at ¶¶ 197-98, Faine et al v. Zep, Inc. et al, No.
19-CV-5729 (filed Oct. 10, 2019), ECF No. 1-1.
Under the scheme set forth by the defendants, plaintiffs, who are suffering from serious
medical conditions allegedly arising from decades of unwitting toxic exposures, bear the ongoing
burden of reviewing technical government reports, regulatory proposals and nationwide media for
any hint that their ailments might have resulted from a previously unidentified carcinogen lurking

in the ingredients of commercial products used during their employment. It would also charge
them with the responsibility of recognizing the chemical name of such substances, knowing that
such substances were present in commercial products and/or unmarked solvents used during their
employment, and seeking these substances out from lists of hundreds or thousands of chemical
compounds. Such obligations would redefine the phrase “reasonably should have known.” More
to the point, the Freier decision explicitly rejected a determination by the district court that claims
were time-barred because “plaintiffs did not show that they could not have obtained [a report
demonstrating causation] sooner.” Freier, 303 F.3d at 194-95. The Circuit therefore reversed the
district court’s grant of summary judgment, finding that “there were triable issues of fact as to the
time when plaintiffs reasonably should have known the cause of the injuries.” Id. at

195. Certainly, then, defendants cannot prevail on this issue at this early juncture.8 Indeed, the
question is, at this stage, not even close.

8 Of course, plaintiffs’ view that the statute of limitations should accrue when a plaintiff is first shown a document by
his or her attorney could raise concerns. This construction seems to put control of the accrual of the statute of
limitations entirely within the volitional control of plaintiffs and their counsel and raises the specter of defendants
having to respond to cases many years, if not decades, after information about toxicity becomes available. But those
concerns are not present here. In this case, plaintiffs filed suit with sound (and perhaps commendable) dispatch within
a modest time frame after the state of scientific knowledge advanced to reveal that the charged substance could have
been the cause of plaintiffs’ maladies. This seems particularly true given the time frame here: according to the
allegations, plaintiffs were allegedly exposed to then-unknown toxins over a period of decades, and yet filed litigation
within months of the filing deadline which defendants would have the Court adopt. Furthermore, as noted, the
allegations of the Amended Complaint—again, assumed to be true—set forth that at least certain defendants knew
that a TCE ban was forthcoming and, rather than warn the plaintiffs or cease its use, secretly stockpiled the chemical.
See Verified Amended Complaint at ¶ 119, Yuhas v. Associated U., Inc. et al, No. 19-CV-5475 (filed September 26,
2019), ECF No. 1-2. Under such circumstances, imposing the kinds of obligations upon plaintiffs asserted by
defendants seems highly inequitable.
Thus, defendants’ motions to dismiss based on statute of limitations issues are DENIED.

Conversion to Summary Judgment and Restriction of Discovery
This determination informs a decision regarding an alternative application by defendants

that, in the event of a denial of the 12(b) motions by this Court, defendants seek conversion of such
motions to ones for summary judgment, with the added caveat that discovery should be “limited
[to] the date on which [plaintiffs] discovered, or should have discovered, the cause of [their]
injuries.” See, e.g., Motion to Dismiss at 20-22, Yuhas v. Associated U., Inc. et al, No. 19-CV-
5475 (filed May 22, 2020), ECF No. 36 (arguing, inter alia, that “Yuhas, ostensibly, must have
had some knowledge of the purported connection between TCE and his alleged injuries prior to be
[sic] shown this information by his own attorneys.”). Defendants properly recognize that the
questions of scheduling and so limiting discovery rests in the sound discretion of this Court. Id.
(citing, inter alia, H. L. Moore Drug Exch., Inc. v. Smith, Kline & French Labs., 384 F.2d 97 (2d
Cir. 1967)).

The Court is quite familiar with the obligations of Rule 1 of the Federal Rules of Civil
Procedure, which “commands this Court and the parties to utilize the Rules to ‘secure the just,
speedy and inexpensive determination of every action and proceeding.’” Flores v. Town of Islip,
No. 18-CV-3549 (GRB)(ST), 2020 WL 5211052, at *3 (E.D.N.Y. Sept. 1, 2020) (emphasis in
original). Certainly, “targeted discovery” can prove an effective means of satisfying this
mandate. See, e.g., Bravo v. Finest Maint. Inc., No. CV 13-342 SJF GRB, 2015 WL 5093599, at
*1 (E.D.N.Y. June 15, 2015), report and recommendation adopted, No. 13-CV-342 SJF GRB,
2015 WL 5093278 (E.D.N.Y. Aug. 27, 2015).
But here, several factors weigh against this approach. Significantly, the serious harms and
actions alleged here, which have caused debilitating and potentially life-threatening injury to
plaintiffs, warrant serious and rapid consideration. The interests of the parties, as well as the public
interest, would be served by a speedy and just determination of these claims. Defendants have

already delayed these proceedings with the instant motion practice, predicated, in some instances,
on marginal arguments, for the better part of a year, while simultaneously increasing the costs of
this litigation. Moreover, as this Court finds defendants’ statute of limitations argument largely
unpersuasive, targeted discovery seems unlikely to provide the silver bullet sought by defendants.
As such, the application to convert the motion to summary judgment while restricting
discovery to factual issues relating to the knowledge of plaintiffs as to causation is DENIED.

II. Defenses under EEOICPA
The employer-defendants seek dismissal pursuant to the Energy Employees Occupational
Illness Compensation Program Act (“EEOICPA”), 42 U.S.C. § 7384 et seq—commonly referred

to by its unpronounceable acronym EEOICPA9—asserting that, as employers covered by the
congressional compensation scheme set forth in this statute, they have a complete defense to the
claims which should therefore be dismissed. The parties expend great energy on characterizing
this defense, to wit: whether it constitutes sovereign immunity, qualified immunity or an exclusive
remedy that prohibits the instant suit. The dispute proves more theoretical than actual, and
ultimately, EEOICPA provides a potentially formidable defense for the employer-defendants.
However, the facts alleged—again taken as true for the purposes of this motion—provide

9 During argument, counsel advised the Court that “EEOICPA” is articulated by practitioners with a counterintuitive
pronunciation. Suffice it to say that, unlike radar, scuba and their ilk, this unmellifluous acronym seems unlikely to
freely enter the lexicon any time soon.
arguments to plaintiffs that could undercut the defense in whole or in part, such that the motion on
this ground is denied without prejudice to renewal after the development of a factual record.
As one court has observed:
The EEOICPA establishes a compensation program that provides benefits to certain
employees who suffer from illnesses related to their exposure [to dangerous
substances] in connection with the performance of their work for the Department
of Energy (“DOE”). See 42 U.S.C. §§ 7384(a)(8), 7384d(b). The EEOICPA was
intended “to provide for timely, uniform, and adequate compensation of covered
employees and, where applicable, survivors of such employees, suffering from
illnesses incurred by such employees in the performance of duty for the Department
of Energy and certain of its contractors and subcontractors.” 42 U.S.C. § 7384d.
The DOL is designated as the administrating agency of the program. See Exec.
Order No. 13,179; 65 Fed.Reg. 77487 (Dec. 7, 2000). Covered employees under
Part B of the EEOICPA include those with specified types of cancer who contracted
their illnesses after beginning employment at a DOE facility. See 42 U.S.C. §
7384l(9) & (17). A covered employee receives compensation in the amount of a
$150,000.00 lump-sum payment, plus medical benefits. 42 U.S.C. § 7384s(a)-(b).
Part E of the EEOICPA provides additional compensation to certain DOE
contractor employees or their eligible survivors for permanent impairment and/or
wage loss due to a covered illness resulting from work-related exposure to a toxic
substance at a DOE facility. 42 U.S.C. § 7385s.

Hammond v. United States, 2014 WL 1277892, at *3-4 (D.S.C. Mar. 27, 2014). Several
plaintiffs—such as plaintiff Marino—have received benefits under EEOICPA, and therefore do
not, as they cannot, argue that they are not “covered employees” under the Act. See, e.g., See
Reply to Response to Motion at 12, Marino v. Brookhaven Science Associates, L.L.C. et al, No.
19-CV-4839 (filed May 22, 2020), ECF No. 49. And there is little question that EEOICPA is
intended, as the employer-defendants argue, as an exclusive remedy. Section 7385c of Title 42,
United States Code provides, in relevant part, as follows:
The liability of the United States or an instrumentality of the United States under
this subchapter with respect to a cancer . . . of a covered employee is exclusive and
instead of all other liability [of] a contractor that contracted with the Department of
Energy to provide management and operation, management and integration, or
environmental remediation of a Department of Energy facility (in its capacity as a
contractor) [or] a subcontractor that provided services, including construction, at a
Department of Energy facility (in its capacity as a subcontractor) . . . to the covered
employee [and] the covered employee's legal representative, spouse, dependents,
survivors, and next of kin . . . in any proceeding or action including a direct judicial
proceeding, a civil action, a proceeding in admiralty, or a proceeding under a tort
liability statute or the common law.

42 U.S.C. § 7385c(a). Counsel for all plaintiffs contend, however, that because the employer-
defendants acted in contravention of government directives and, at least arguably, in violation of
law, they acted outside their capacity as contractors or subcontractors, and effectively forfeited the
protections of the statute. It is a novel argument based almost exclusively on the statutory
language. See, e.g., Response in Opposition at 11-15, Yuhas v. Associated U., Inc. et al, No. 19-
CV-5475 (filed May 22, 2020), ECF No. 31. Plaintiffs draw some support—albeit by way of
analogy—from the Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, , which held that
“[w]hen a contractor violates both federal law and the Government's explicit instructions, as here
alleged, no ‘derivative immunity’ shields the contractor from suit by persons adversely affected
by the violation.” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 166 (2016).
This principle, plaintiffs argue, bars the defendants from reaping the benefit of the
exclusivity bar created by EEOICPA. This contention is predicated upon the allegations of the
complaint, including claims that AUI stockpiled TCE as an end-run around an anticipated DOE
ban of its use at its facilities, and that AUI and BSA created a practice of drawing on that stockpile
in derogation of that ban and their express contractual responsibilities. In this regard, though, the
statutory exclusivity provision seems to present, at least potentially, different considerations than
the “derivative immunity” grant reviewed in Campbell-Ewald. Many workplace accidents arise
from negligence deriving from hazards that amount to regulatory or statutory violations, yet remain
within the (exclusionary) ambit of workers’ compensation. See, e.g., Estate of Loveria ex rel.
Loveria v. Portadam, Inc., 850 F. Supp. 2d 354, 362 (N.D.N.Y. 2010). However, numerous
reported decisions exclude intentional torts from this bar, predicated upon workers’ compensation
statutes that contain explicit carve-outs for such cases. See, e.g., Torres v. Pisano, 116 F.3d 625,
640 (2d Cir. 1997) (“Workers’ compensation exclusivity does not, however, preclude an
employee’s suit if the employer committed an intentional tort or another person committed such

an intentional wrong at the employer’s direction.”).
While there is scant caselaw interpreting EEIOCPA’s exclusivity provision, at least one
court has ruled that EEIOCPA’s exclusivity provisions prohibit claims against a DOE contractor
that allegedly acted as a manufacturer or distributor of hazardous machinery, and thus arguably
acted outside the scope of its role as a maintenance contractor. See Lemanski v. Regents of Univ.
of Cal., 2008 WL 2080773, at *3 (N.D. Cal. May 14, 2008) (“While the FAC does include[] an
allegation that [defendants] manufactured or distributed defective instruments . . . which caused
injury to Mr. Lemanski while he was working at the LANL . . . if those instruments were at the
LANL in conjunction with Johnson's providing services as a contractor or subcontractor, the
exclusivity provision applies.”). Yet the facts and issues in Lemanski differ greatly from those at

issue here.
Plaintiffs’ arguments turn on Congress’s inclusion of the qualifier “in its capacity as a
contractor [or] subcontractor” in the text of the exclusivity provision. Does this qualifier indicate
that an entity acting outside that capacity disentitles an entity from invoking the bar? The parties
acknowledge, and the Court’s research confirms, that this question appears to be one of first
impression in the Second Circuit. “When construing a statute, [a] fundamental principle of
statutory construction [is] that we begin with the language of the statute itself.” Marx v. Gen.
Revenue Corp., 568 U.S. 371, 388 (2013) (Sotomayor, J., dissenting). Applying the capacity
language raises the question: is it possible that actions by the employer-defendants that are illegal
or egregiously contrary to Government directives may be found to fall outside their “capacity as a
contractor [or] subcontractor”? In other words, could a finder of fact determine that the alleged
actions were outside the role of the employer-defendants as a contractor or subcontractor? In
answering these questions, the Supreme Court’s decision in Campbell-Ewald Co. v. Gomez does

become instructive: “when a contractor violates both federal law and the Government's explicit
instructions,” it is conceivable that that entity could forfeit the benefit of the EEIOCPA exclusivity
provision.
The Longshore and Harbor Workers' Compensation Act (“LHWCA”), found at 33 U.S.C.
§§ 901 et seq., constitutes one of the few federal statutes comparable to state workers’
compensation schemes. Defendants invite comparison to the instant case, correctly noting that the
Second Circuit has held that “[l]ike most state workers' compensation schemes, the LHWCA
provides that the statutory, no-fault compensation payments are the employer's exclusive liability
to its employees when they are injured in the course of their employment.” Reply to Response to
Motion at 15, Marino v. Brookhaven Science Associates, L.L.C. et al, No. 19-CV-4839 (filed May

22, 2020), ECF No. 49 (quoting Gravatt v. City of New York, 226 F.3d 108, 115 (2d Cir. 2000)).
Yet, the analogy to the LHWCA proves double-edged: based upon the statutory language,
applicability of the LHWCA’s exclusivity provision turns upon the capacity in which the defendant
has acted. See Gravatt, 226 F.3d at 111 (“The statute implies, and has been interpreted to provide,
that an employer that is also a vessel owner can be liable to its employees as if it were a third party
for negligence in its vessel capacity.”). And the determination of a defendant’s capacity—and its
ability to invoke the protection of the exclusivity provision—is a fact-based determination as to
the nature and context of its actions. Id. (“We must decide whether S & B's conduct renders it
liable to Gravatt in tort given that it acted in this dual capacity of employer and vessel owner.”).
Therefore, in Gravatt, the Court of Appeals reversed the district court’s finding of tort liability by
the employer-defendant, but only based upon a full factual record that followed a bench trial. See
id. at 111-13. While the LHWCA is helpful only by analogy, it is notable that Congress has
enacted a similar compensation scheme in which the application of the exclusivity provision turns

on a factual determination of the capacity in which a given defendant acted.
I find that, under the plain language of the statute,10 actions of an entity that are unlawful,
and contrary to contractual obligations and/or government directives may, in extraordinary cases,
be actionable if such acts fall outside the “capacity of a contractor or subcontractor” as defined by
the exclusivity provision of EEIOCPA.
There is a risk that too much can be read into this language, as not every negligent act, or
hazardous risk created by a contractor, can be construed as being outside a contractor’s “capacity,”
even when seen as being inconsistent with Government directives, contrary to contractual
provisions or violative of safety regulations. The statute is clearly meant to create an efficient
compensation scheme for employees, on a no-fault basis, avoiding the need for expensive, time-

consuming litigation. Because EEIOCPA deals with serious harms arising from the handling of
radioactive and highly toxic materials, the nature of the conduct that would justify a finding that a
party acted outside its capacity as a contractor or subcontractor under EEIOCPA would have to be
extraordinary. The parties have not cited any caselaw setting forth a test or standard for making
such a determination, and the Court’s independent research has revealed none. Given the

10 Even assuming, arguendo, that the statute was ambiguous on this point, rules of statutory construction would compel
the same result. The defendants would have the Court treat the “capacity” qualifier—twice inserted by Congress into
the provision—as mere surplusage, running afoul of a basic tenet of statutory construction. Xiao Ji Chen v. U.S. Dep't
of Justice, 434 F.3d 144, 152 (2d Cir.), amended sub nom. Chen v. U.S. Dep't of Justice, (2d Cir. Mar. 20, 2006), and
on reh'g, 471 F.3d 315 (2d Cir. 2006) (“[A]s a matter of statutory construction, we do not assume Congress intended
to include pure “surplusage” in its enactments . . . .”). Defendants offer no competing interpretation of the statute that
would treat the capacity element as anything other than surplusage.
congressional purpose behind the statute, to wit: to create a comprehensive compensation scheme,
the standard would have to be very high.
In crafting such a standard, cases interpreting the “intentional tort” exceptions to state
workers’ compensation schemes prove instructive. In Crippen v. Cent. Jersey Concrete Pipe Co.,

823 A.2d 789, 791 (N.J. 2003), the court considered the question of whether a fatal industrial
accident fell outside the exclusivity provision of Worker’s Compensation “due to defendant's
deliberate failure to correct OSHA violations and its fraudulent misrepresentations to OSHA that
it had abated the unsafe work conditions.” The Crippen court reversed a lower court’s grant of
summary judgment to defendant, finding that “a jury reasonably could conclude that defendant
had knowledge that its deliberate failure to cure the OSHA violations would result in a substantial
certainty of injury or death to one of its employees.” Id. at 797. In reaching this decision, the
court concluded:
Defendant, contrary to OSHA's order, maintained the safety hazards that ultimately
caused Crippen's death, and deliberately deceived OSHA into believing that the
violations had been corrected. Defendant effectively precluded OSHA from
carrying out its mandate to protect the life and health of defendant's workers. We
are persuaded that the Legislature never intended such conduct to constitute a part
of everyday industrial life and would not expect it to fall within the Workers'
Compensation bar.

Id. (alterations omitted). This remains a high bar. As one judge noted in a concurring opinion:
This is a close case. I join the Court's opinion largely based on plaintiff's allegation
that the defendant employer attempted to deceive federal regulators into believing
that it had abated certain safety violations prior to the date of Harold Crippen's
work-related death. . . . To vault the exclusivity bar, an injured worker must satisfy
two conditions . . . . First, he or she must allege sufficient facts demonstrating that
an employer knew that its actions were “substantially certain to result in injury or
death to the employee.” Second, the worker must show that the circumstances
surrounding the injury constituted “more than a fact of life of industrial
employment” and that they were plainly beyond anything the Legislature intended
the Workers' Compensation Act to immunize.
Id. at 798 (Verniero, J., concurring) (citations omitted). One federal court interpreting the same
legislative exception granted summary judgment in a wrongful death action, notwithstanding the
existence of an OSHA violation, because “the evidence does not support a conclusion that the
circumstances surrounding the death of decent [sic] were outside of the purview of the conditions

the Legislature could have intended to immunize under the Workers' Compensation bar.” Estate
of Loveria ex rel. Loveria v. Portadam, Inc., 850 F. Supp. 2d 354, 362 (N.D.N.Y. 2010). Loveria
specifically required a showing of “bad faith” on the part of the employer, noting:
Plaintiff does not provide evidence that Portadam purposefully ignored mandates
from OSHA to change its behavior or that Portadam deceived OSHA in any way.
The bad faith involved in the cases in which the second prong was met are simply
not present in this case.

Id.
In most jurisdictions, to overcome a workers’ compensation exclusivity provision, the
standard is even higher: “a plaintiff must be able to point to specific facts and evidence that the
defendant intended to cause harm.” Lauria v. Donahue, 438 F. Supp. 2d 131, 141 (E.D.N.Y. 2006)
(“[M]ere allegations in a complaint that a defendant acted in a ‘willful’, ‘deliberate’, or
‘intentional’ manner in causing harm, will not be enough to uphold an intentional tort claim.”).
“The overwhelming weight of authority is that the common law liability of the employer cannot
be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate,
intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct
short of genuine intentional injury.” Houston v. Bechtel Assocs. Prof'l Corp., D.C., 522 F. Supp.
1094, 1096 (D.D.C. 1981). Other courts have limited the exclusion to circumstances in which the
employer had “reason to believe an injury was ‘certain to occur.’” Birkenbach v. Nat'l Gypsum
Co., No. 13-14607, 2014 WL 2931795, at *7 (E.D. Mich. June 30, 2014). These analogous cases
demonstrate that it is the rare case in which plaintiffs may prevail.
In this case, determining the application of the exclusivity provision of EEIOCPA is a fact-
intensive question, and at this juncture, the allegations must be assumed as true and all inferences
drawn in favor of the plaintiffs as non-movants. On the facts alleged, whether AUI and BSA may
have acted outside their capacities as contractor is a very close question. Yet it is alleged that AUI

preemptively stockpiled massive quantities of TCE specifically in anticipation of a Department of
Energy ban of the chemical because of its toxicity. Further, AUI and BSA allegedly continued to
have their employees and those of their subcontractors draw on this stockpile and deploy the
substance for sixteen years in violation of that ban, in derogation of Government directives and
contractual provisions, and failed to provide such employees with information, equipment and
procedures that would have protected them from the allegedly established dangers of TCE. Taken
together, those extraordinary facts, if proven, might satisfy a finder of fact that the employer-
defendants acted outside their capacity as a Government contractor or subcontractor. Thus, at this
early juncture, I find that plaintiffs have alleged facts sufficient to cast doubt on whether the
employer-defendants acted within the scope of their contractual capacities. Accordingly, the

motion will be denied without prejudice to renewal following the completion of discovery on this
issue.11
Another complication concerns the time periods in which certain plaintiffs worked for the
employer-defendants, and whether the employer-defendants were, in fact, contractors or
subcontractors as defined by the statute during those periods. For example, plaintiff Yuhas
allegedly worked for many years at AUI, but after 1998, he became an employee of BSA
(seemingly before BSA became the operating contractor at BNL). Verified Amended Complaint
at ¶¶ 160-61, Yuhas v. Associated U., Inc. et al, No. 19-CV-5475 (filed September 26, 2019), ECF

11 Nothing in this opinion should be construed as limiting or prioritizing any discovery issues.
No. 1-2. Other plaintiffs, such as Marino, worked for subcontractors other than the employer-
defendants, and the nature of the subcontracting relationship is not clearly articulated. Exactly
how the exclusivity provision applies to each plaintiff and defendant—in other words, whether the
plaintiffs are “covered employees” during relevant timeframes—may turn on these distinctions:

further factual development will therefore be required before this issue can be fully resolved.
Thus, motions to dismiss by the employer-defendants predicated upon EEIOCPA are
denied without prejudice to renewal at the completion of discovery. See In re Oil Spill by the Oil
Rig Deepwater Horizon in the Gulf of Mexico, on Apr. 20, 2010, No. MDL 2179, 2011 WL
4575696, at *6 (E.D. La. Sept. 30, 2011), as amended (Oct. 4, 2011) (“Because this decision is not
based on the merits of Defendants’ arguments, however, Defendants are not prejudiced from
reasserting this defense at a later time.”).12

III. Miscellaneous Pleading Defects
Defendants move to dismiss the remaining claims, contending that such claims are

inadequately pled. These contentions are dealt with in turn:
a. Abnormally Dangerous Activities
Concerning claims for abnormally dangerous or ultrahazardous activities, one court has
observed:
New York has adopted the six factors enumerated in the Restatement of Torts 2nd
(§ 520) to determine whether or not an activity is abnormally dangerous or ultra-
hazardous, thus giving rise to strict liability. Doundoulakis v. Town of Hempstead,
42 NY.2d 440, 398 N.Y.S.2d 401, 368 N.E.2d 24 (1997). These factors are as
follows:

12 For many of the same reasons, to the extent defendants’ motions are predicated on the New York Workers’
Compensation statute (which excludes claims for negligence and gross negligence) they are denied, though plaintiffs
should recognize that the exacting standards applied under New York law will be diligently applied to their claims.
1. Existence of a high degree of risk of some harm to the person, land or
chattels of others;
2. Likelihood that the harm that results from it will be great;
3. Inability to eliminate the risk by the exercise of reasonable care;
4. Extent to which the activity is not a matter of common usage;
5. Inappropriateness of the activity to the place where it is carried on;
6. Extent to which its value to the community is outweighed by its
dangerous attributes.

German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537, 570 (S.D.N.Y.), decision clarified
on reargument sub nom. German by German v. Fed. Home Loan Mortg. Corp., 896 F. Supp. 1385
(S.D.N.Y. 1995). As several courts have held, “[m]ost useful for purposes of analyzing plaintiffs’
claim is whether the risk from the activity is able to be eliminated by the exercise of reasonable
care.” Id. In this case, “[i]mplicit in plaintiff's allegation is the acknowledgment that had
defendants exercised due care,” the risks from TCE exposure could have been mitigated or abated.
Nat'l R.R. Passenger Corp. v. New York City Hous. Auth., 819 F. Supp. 1271, 1279 (S.D.N.Y.
1993). Thus, the third element of the test remains unsatisfied. Moreover, as defendants correctly
point out, the value of the work of BNL can hardly be overestimated, casting some doubt as to
whether the sixth element has been met. Thus, plaintiffs’ claims for ultrahazardous activities are
dismissed without prejudice.

b. Gross Negligence
Defendants also move to dismiss the claims of gross negligence as against the employer-
defendants. As the Second Circuit has held:
On a motion to dismiss, a claim for gross negligence will be sustained only if the
plaintiff alleges facts plausibly suggesting that the defendant's conduct “evinces a
reckless disregard for the rights of others or smacks of intentional wrongdoing.”
M+J Savitt, Inc. v. Savitt, No. 08 Civ. 8535(DLC), 2009 WL 691278, at *12
(S.D.N.Y. Mar. 17, 2009) (quoting AT & T v. City of New York, 83 F.3d 549, 556
(2d Cir.1996)). Recklessness in the context of a gross negligence claim means “an
extreme departure from the standards of ordinary care,” such that “the danger was
either known to the defendant or so obvious that the defendant must have been
aware of it.” AMW Materials Testing, Inc. v. Town of Babylon, 584 F.3d 436, 454
(2d Cir.2009) (internal quotation mark omitted).

Bayerische Landesbank, New York Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42, 61-62 (2d
Cir. 2012). Defendants halfheartedly argue that plaintiffs’ “conclusory allegations state no more
than a claim for ordinary negligence.” Motion to Dismiss at 21, Marino v. Brookhaven Science
Associates, L.L.C. et al, No. 19-CV-4839 (filed May 22, 2020), ECF No. 46. As discussed above,
the specific allegations—which could be described as shocking—go far beyond ordinary
negligence. In fact, the allegations “smack[] of intentional wrongdoing” and “may plausibly be
said to have been an extreme departure from the standard of ordinary care,” elements that the
Second Circuit identified as adequate to satisfy the pleading requisites for gross negligence.
Bayerische Landesbank, 692 F.3d at 62. Therefore, the motion to dismiss the claims for gross
negligence are denied.

c. Fraudulent Concealment
Turning to plaintiffs’ claims for fraudulent concealment, plaintiffs’ pleadings must be
reviewed through the more exacting lens of Rule 9(b). Hinds Cty., Miss. v. Wachovia Bank N.A.,
620 F. Supp. 2d 499, 520 (S.D.N.Y. 2009) (“A claim of fraudulent concealment must be pled with
particularity, in accordance with the heightened pleading standards of Fed.R.Civ.P. 9(b).”). As

plaintiffs acknowledge:
Under New York law, to sustain a fraudulent inducement claim the Plaintiff must
plausibly allege that “(1) the defendant made a material, false representation, (2)
the defendant intended to defraud the plaintiff thereby, (3) the plaintiff reasonably
relied upon the representation and (4) the plaintiff suffered damage as a result of
such reliance” Wall v. CSX Transp., Inc., 471 F.3d 410, 415–16 (2d Cir.2006)
(citing Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 19
(2d Cir.1996)). A fraudulent concealment claim shares these same elements with
the additional requirement that a plaintiff must show that the defendant had a duty
to disclose the material information.

Woods v. Maytag Co., 807 F. Supp. 2d 112, 119 (E.D.N.Y. 2011); Response in Opposition at 30,
Yuhas v. Associated U., Inc. et al, No. 19-CV-5475 (filed May 22, 2020), ECF No. 31. Here, the
pleadings are silent as to an intent to defraud, a defect that proves fatal to this claim. Catalano v.
BMW of N. Am., LLC, 167 F. Supp. 3d 540, 545 (S.D.N.Y. 2016) (“[The] fraudulent concealment
claim is dismissed because the FAC fails to allege a strong inference of fraudulent intent as
required under Rule 9(b) . . . .”). In fact, plaintiffs correctly argue that, based upon the allegations,
defendants undertook the actions described “with no apparent reason.” Response in Opposition at
28, Yuhas v. Associated U., Inc. et al, No. 19-CV-5475 (filed May 22, 2020), ECF No. 31. Thus,
the motion to dismiss the fraudulent concealment claim is granted without prejudice to repleading,
though effective repleading may not be possible.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that defendants’ motions to dismiss the
complaints in these cases are hereby GRANTED IN PART and DENIED IN PART, as follows:
1. The motions by all defendants predicated upon statute of limitations are denied;

2. The motions by the employer-defendants based upon the exclusivity provisions of
EEIOCPA are denied without prejudice to the reassertion of these defenses after
discovery;
3. Plaintiffs’ claims of abnormally dangerous or ultrahazardous activities are dismissed
without prejudice;
4. Defendants’ motion to dismiss claims of gross negligence are denied; and
5. Plaintiffs’ claims sounding in fraudulent concealment are dismissed without
prejudice.
It is further ordered that counsel are directed to meet and confer forthwith to (a) develop procedures
to ensure the effective consolidation and coordination of these cases and related cases in a manner

designed to reduce costs, save time and conserve judicial resources and (b) prepare a
comprehensive discovery schedule which will be submitted to the assigned magistrate judge within
forty-five (45) days of the date of this decision. The matter is referred to the assigned magistrate
judge for all non-dispositive determinations to help ensure fair and efficient preparation and
resolution of these cases.
Dated: Central Islip, New York
December 21, 2020

/s/ Gary R. Brown
GARY R. BROWN
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305414. Public record. Not legal advice.