Terry Martin v. Behr Dayton Thermal Products, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

IN RE BEHR DAYTON THERMAL :

PRODUCTS LITIGATION

Case No. 3:08-cv-326

"JUDGE WALTER H. RICE

DECISION AND ENTRY SUSTAINING PLAINTIFFS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT (DOC. #359); SUSTAINING IN

PART AND OVERRULING IN PART DEFENDANT ARAMARK

UNIFORM & CAREER APPAREL’S MOTION FOR PARTIAL

SUMMARY JUDGMENT (DOC. #360); SUSTAINING IN PART AND

OVERRULING IN PART MAHLE BEHR DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT (DOC. #362); SUSTAINING IN PART AND

OVERRULING IN PART DEFENDANT OLD CARCO, LLC’S MOTION

FOR SUMMARY JUDGMENT (DOC. #365)

The Plaintiffs’ in this consolidated action live in an area of Dayton, Ohio,

where the soil, groundwater and air is contaminated with volatile organic

compounds (“VOCs”) from nearby industries. They seek damages under a variety

of theories from Defendants Old Carco, LLC (nominal defendant for now-bankrupt

Chrysler, LLC), Aramark Uniform & Career Apparel, LLC (“Aramark”), and Behr

1 Named Plaintiffs include Terry Martin, Linda Russell, Nancy Smith and Deborah

Needham.

Dayton Thermal Products, LLC, now known as Mahle Behr Dayton, LLC, and Behr

America, Inc., now known as Mahle Behr USA, Inc. (collectively “Behr”).

Pursuant to Fed. R. Civ. P. 23(c)(4), the Court has certified seven issues for class

treatment. Trial is set to begin on October 17, 2022.

This matter is currently before the Court on four pending motions: (1)

Plaintiffs’ Motion for Partial Summary Judgment, Doc. #359; (2) Defendant

Aramark Uniform & Career Apparel’s Motion for Partial Summary Judgment, Doc.

#360; (3) Mahle Behr Defendants’ Motion for Summary Judgment, Doc. #362; and

(4) Old Carco, LLC’s Motion for Summary Judgment, Doc. #365.

I. Background and Procedural History

The McCook Field neighborhood in Dayton, Ohio, is located near the

confluence of the Great Miami River and the Mad River. This area has been

declared a Superfund site because the groundwater and soil are contaminated

with volatile organic compounds (“VOCs”), including trichloroethylene (“TCE”)

and tetrachloroethylene (“PCE”), that exceed recommended screening levels.

Such chemicals are known to cause cancer in humans. These VOCs have

allegedly risen through the groundwater and soil beneath Plaintiffs’ homes to

cause vapor intrusion inside their homes. Approximately 240 homes in the

McCook Field neighborhood are affected, as well as two schools.

The VOCs at issue are thought to have originated from several industrial

manufacturing sites located immediately to the north of the McCook Field

neighborhood. There are two plumes of groundwater containing VOC

contaminants. One is thought to have originated from the Behr Facility, which

was previously owned and operated by Chrysler. This is known as the “Chrysler-

Behr Plume.” The second plume, which is situated within the Chrysler-Behr

Plume, contains VOC contaminants allegedly originating from the Chrysler-Behr

facility and the Aramark facility. This plume is known as the “Chrysler-Behr-

Aramark Plume.”

Chrysler owned and operated an automotive parts manufacturing facility on

the site from 1936 until 2002, when the facility was purchased by Behr. It is

undisputed that, from approximately the 1950s until the late 1970s or early 1980s,

Chrysler used chlorinated solvents, including TCE, for degreasing and cleaning

certain equipment. In 1969, “cleaning oil” was found in soil samples on

Chrysler’s property. In the 1970s, Chrysler also sporadically used PCE.

In 1987, Chrysler discovered liquid contaminated with TCE and PCE ina

post hole it drilled in the concrete floor of one of its buildings. Over the next

couple of years, dozens of gallons of liquid were removed from the post hole.

Consultants hired by Chrysler found VOC contaminants in the drinking water and

in the soil on Chrysler’s property. In 1991, Chrysler discharged millions of gallons

of water from its powerhouse well into the city storm sewers, knowing that the

water contained TCE and PCE.

That same year, a consultant alerted Chrysler to the possibility that the VOC

contaminants could migrate off-site downgradient of the plant, and recommended

that Chrysler evaluate the associated risks. Additional groundwater and soil

testing was performed over the next few years and, in 1995, an investigation

report again discussed the potential for off-site migration of VOC contaminants.

In 1998, groundwater samples detected dangerous levels of TCE and PCE at

numerous locations on the Chrysler property. A soil gas survey indicated that

concentrations of TCE, possibly originating from the Chrysler facility, were likely

present in the residential area immediately to the south of the facility. That same

year, Chrysler began operating a soil vapor extraction system on its own property

and enrolled in the Ohio Environmental Protection Agency’s (“Ohio EPA’s”)

Voluntary Action Program.

Behr purchased the Chrysler facility in 2002. The asset purchase agreement

required Chrysler to remediate the contamination, and to indemnify and retain

liability for contamination of property other than its own. Working with the Ohio

EPA, Chrysler continued efforts to remediate soil and groundwater contamination

at the Behr facility. It evaluated groundwater flow, and installed soil vapor

extraction systems and groundwater remediation systems that operated

intermittently over the next few years.

In 2006, after the Ohio EPA evaluated the risk of vapor intrusion from the

contaminated groundwater, the United States Environmental Protection Agency

(“USEPA”) got involved. Soil gas samples and indoor air samples collected from

residences in the McCook Field neighborhood showed greatly elevated TCE

concentrations in some of the structures. In December of that year, the USEPA

and Chrysler signed an Administrative Order by Consent, requiring Chrysler to

remediate the contamination.

Chrysler began testing homes for vapor intrusion and installed vapor

mitigation systems in dozens of structures. However, in 2009, Chrysler filed for

bankruptcy and terminated all work at the site. Old Carco, LLC is the nominal

defendant for Chrysler. Pursuant to a Unilateral Administrative Order issued by

the USEPA, Behr later assumed responsibility for continued remediation.

Defendant Aramark owns and operates a commercial laundry facility

located just south of the Chrysler-Behr facility. Aramark’s predecessors used PCE

in their dry-cleaning operations until 1987. In 1989, PCE was discovered in an

underground storage tank that contained detergent. In 1992, Aramark learned

that the soil and groundwater around its facility was contaminated with PCE. It

installed four groundwater monitoring wells. A consultant identified the potential

for off-site migration and recommended further sampling; however, Aramark took

no action to address this risk. In 1996, Aramark used soil vapor extraction wells to

remediate groundwater on its own property, and operated those wells through

2003.

Although the USEPA identified Aramark as a potentially responsible party,

Aramark refused to take part in the remedial investigation and feasibility study. In

September of 2021, however, Aramark and Behr agreed to design and implement

the EPA’s selected interim remedy for the site, which includes ongoing sampling

and remediation.

Three separate lawsuits were filed in 2008, seeking damages for the

contamination affecting the McCook Field neighborhood. These were eventually

consolidated in the above-captioned case. A Third Master Complaint was filed in

2014, asserting claims of trespass, private nuisance, unjust enrichment, strict

liability, negligence, negligence per se, battery, intentional fraudulent

concealment, constructive fraud, negligent misrepresentation and civil conspiracy.

Doc. #242.

Plaintiffs later filed an Amended Motion for Class Certification, Doc. #254.

Therein, they asked the Court to certify, under Fed. R. Civ. P. 23(b)(3), a liability-

only class with respect to the claims of private nuisance, negligence, negligence

per se, strict liability and unjust enrichment. They planned to individually pursue

the other six claims. The Court overruled the Rule 23(b)(3) class certification

motion. Doc. #274. It did, however, agree to certify seven liability-related issues

for class treatment under Fed. R. Civ. P. 23(c)(4).2, That decision was affirmed by

the Sixth Circuit Court of Appeals. Martin v. Behr Dayton Thermal Products, LLC,

896 F.3d 405 (6th Cir. 2018).

2 If these issues are resolved in Plaintiffs’ favor, individual trials for all viable

claimants must be held to determine liability and damages on the claims of

private nuisance, negligence, negligence per se, strict liability and unjust

enrichment. The named Plaintiffs may then individually pursue their remaining

claims for battery, trespass, civil conspiracy, constructive fraud, intentional

fraudulent concealment and negligent misrepresentation.

The seven issues certified for class treatment are:

1. Each Defendant's role in creating the contamination within

their respective Plumes, including their historical operations,

disposal practices, and chemical usage;

2. Whether or not it was foreseeable to Chrysler and Aramark that

their improper handling and disposal of TCE and/or PCE could

cause the Behr-DTP and Aramark Plumes, respectively, and

subsequent injuries;

3. Whether Chrysler, Behr, and/or Aramark engaged in

abnormally dangerous activities for which they are strictly

liable;

4. Whether contamination from the Chrysler-Behr Facility

underlies the Chrysler-Behr and Chrysler-Behr-Aramark Class

Areas;

5. Whether contamination from the Aramark Facility underlies the

Chrysler-Behr-Aramark Class Area;

6. Whether Chrysler and/or Aramark’s contamination, and all

three Defendants’ inaction, caused class members to incur the

potential for vapor intrusion; and

7. Whether Defendants negligently failed to investigate and

remediate the contamination at and flowing from their

respective Facilities.

Four summary judgment motions are currently pending: (1) Plaintiffs’

Motion for Partial Summary Judgment on Certified Issues ##4 and 5, Doc. #359;

(2) Defendant Aramark Uniform and Career Apparel’s Motion for Partial Summary

Judgment on Certified Issues ##2, 3, 6 and 7, Doc. #360; (3) Mahle Behr

Defendants’ Motion for Summary Judgment on Certified Issues ##1, 3, 6 and 7,

Doc. #362; and (4) Old Carco, LLC’s Motion for Summary Judgment on all

Certified Issues, Doc. #365. After these motions were fully briefed, the Court held

an oral argument on May 12, 2022.

ll. Fed. R. Civ. P. 56

Summary judgment must be entered “against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Ce/otex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial

responsibility of informing the court of the basis for its motion, and identifying

those portions of the record which it believes demonstrate the absence of a

genuine issue of material fact. /d. at 323; see also Boretti v. Wiscomb, 930 F.2d

1150, 1156 (6th Cir. 1991).

“Once the moving party has met its initial burden, the nonmoving party

must present evidence that creates a genuine issue of material fact making it

necessary to resolve the difference at trial.” 7a//ey v. Bravo Pitino Rest., Lid., 61

F.3d 1241, 1245 (6th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986). Once the burden of production has so shifted, the party opposing

summary judgment cannot rest on its pleadings or merely reassert its previous

allegations. It is not sufficient to “simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to go beyond the

[unverified] pleadings” and present some type of evidentiary material in support

of its position. Ce/otex, 477 U.S. at 324. “The plaintiff must present more than a

scintilla of evidence in support of his position; the evidence must be such that a

jury could reasonably find for the plaintiff.” Michigan Prot. & Advocacy Serv., Inc.

v. Babin, 18 F.3d 337, 341 (6th Cir. 1994).

Summary judgment shall be granted “if 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). “Summary judgment will not lie if the

dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson, 477

U.S. at 248. In determining whether a genuine dispute of material fact exists, a

court must assume as true the evidence of the nonmoving party and draw all

reasonable inferences in favor of that party. /d. at 255. If the parties present

conflicting evidence, a court may not decide which evidence to believe; credibility

determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Federa/

Practice and Procedure § 2726 (3d ed. 1998).

In determining whether a genuine dispute of material fact exists, a court

need only consider the materials cited by the parties. Fed. R. Civ. P. 56(c)(3). “A

district court is not... obligated to wade through and search the entire record for

some specific facts that might support the nonmoving party's claim.” /nterRoyal

Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). If it so chooses, however, a

court may consider other materials in the record. Fed. R. Civ. P. 56(c)(3).

The standard of review for cross-motions of summary judgment does not

differ from the standard applied when a motion is filed by only one party to the

litigation. Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991). “The

fact that both parties have moved for summary judgment does not mean that the

court must grant judgment as a matter of law for one side or the other; summary

judgment in favor of either party is not proper if disputes remain as to material

facts. Rather, the court must evaluate each party's motion on its own merits.” /d.

(citations omitted).

lll. Discussion

Given the significant overlap of the arguments raised in the four motions

for summary judgment, the Court will address the parties’ arguments by Certified

Issue, although not necessarily in order.

Certified Issue #1: Each Defendant’s role in creating the

contamination within their respective Plumes, including their

historical operations, disposal practices, and chemical usage

Behr and Old Carco have each moved for summary judgment on Certified

Issue #1. Plaintiffs argue that Certified Issue #1 is not amenable to summary

judgment given the open-ended nature of the question presented. The Court

agrees but, in any event, genuine issues of material fact preclude granting

Defendants’ motions on Certified Issue #1.

The Court turns first to Behr’s motion. It is undisputed that the two Plumes

of contamination were present long before Behr purchased the facility from

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Chrysler in 2002. It is also undisputed that Behr never used or disposed of TCE or

PCE in its operations at the facility. Behr therefore argues that summary

judgment is warranted on the question of whether Behr played any part in

“creating” the contamination in the Plume Areas.

Plaintiffs argue, however, that, based on the evidence presented, a

reasonable jury could find that Behr’s failure to take action to prevent further off-

site migration of TCE and PCE contributed to the contamination in the Plumes.

That off-site migration allegedly continued long after Behr purchased the Chrysler

facility in 2002. Plaintiffs’ standard-of-care expert, Matt Hagemann, has opined

that “[a]s a direct result of Behr’s violations of the standard of care, off-site

migration of the TCE-and-PCE-contaminated groundwater into the Class Areas

continued unabated and Behr should have foreseen that the contamination would

impact homes downgradient via the vapor intrusion pathway.” Doc. #361-3,

PagelD#12867.

Hagemann’s opinion supports a finding that, even though it is undisputed

that Behr did not d/rect/y contribute TCE or PCE to the Plumes, it nevertheless

played a role in “creating” some of the contamination within those Plumes. The

Court therefore OVERRULES Behr’s motion for summary judgment on Certified

Issue #1.

Old Carco has also moved for summary judgment on Certified Issue #1. Its

arguments are lumped together with arguments raised in support of its motion for

summary judgment on Certified Issue #2. Old Carco argues that Plaintiffs cannot

11

prove that Old Carco negligently used, handled, or disposed of TCE or PCE

because: (1) Plaintiffs fail to present expert testimony of an applicable standard of

care relating to Chrysler’s use and handling of TCE and PCE; and (2) Plaintiffs

cannot demonstrate that Chrysler negligently disposed of TCE or PCE, or that any

allegedly improper disposal had any nexus to Plaintiffs’ alleged injury.

These arguments, which go to the ultimate merits of Plaintiffs’ claims, will

be addressed in connection with Certified Issue #2. However, they are only

tangentially related to the question of Chrysler's “role in creating the

contamination” within the two Plumes. It is undisputed that Chrysler used TCE

and PCE in its historical operations, and that Chrysler played some role in creating

the groundwater contamination within the Plumes. There are, however, many

unresolved questions concerning the details of specific releases and their effect

on the environment. The Court therefore also OVERRULES Old Carco’s motion for

summary judgment on Certified Issue #1.

Certified Issue #2: Whether or not it was foreseeable to Chrysler and

Aramark that their improper handling and disposal of TCE and/or PCE

could cause the Behr-DTP and Aramark Plumes, respectively, and

subsequent injuries

Aramark and Old Carco have moved for summary judgment on Certified

Issue #2. In order to succeed on any of their negligence-based claims, Plaintiffs

must prove: “(1) a duty requiring the defendant to conform to a certain standard

of conduct, (2) breach of that duty, (3) a causal connection between the breach

12

and injury, and (4) damages.” Cromer v. Children’s Hosp. Med. Ctr. of Akron, 29

N.E.3d 921, 928 (Ohio 2015). The existence of a duty hinges on the foreseeability

of injury. /a. As Old Carco points out, foreseeability of injury cannot be

determined until the specific acts of negligence have been identified. Certified

Issue #2 concerns Plaintiffs’ claims of improper “handling and disposal” of TCE

and PCE.

Although the question presented is focused on the question of

foreseeability, Aramark notes that Certified Issue #2 presupposes a finding of

improper handling and disposal. Aramark correctly notes that, because historical

industry standards and applicable regulations concerning the handling and

disposal of VOCs during the relevant time period are outside the knowledge of the

ordinary juror, expert witness testimony is required. Aramark then argues that,

because Matt Hagemann, Plaintiffs’ standard-of-care expert, has no opinion on

whether Aramark improperly handled or disposed of TCE or PCE, the Court need

not reach the question of foreseeability of injury. The Court agrees.

Hagemann opines that Aramark violated the standard of care with respect

to its failure to investigate and remediate the contamination after it discovered

PCE in an underground storage tank in 1989. These claims are addressed in

Certified Issue #7. Plaintiffs, however, offer no expert witness testimony on the

question of whether Aramark or its predecessors negligently Handled or disposed

of PCE or TCE. Hagemann notes that a former employee recalled mopping up a

13

spill of PCE in the 1980s before it reached the drain, but Hagemann offers no

opinion on whether this violated the standard of care.

Plaintiffs also argue that “handling” could be defined broadly enough to

encompass Aramark’s “conduct with regard to the powerhouse well.” Doc. #376,

PagelD#16274. It appears that Plaintiffs have inadvertently confused Aramark

with Chrysler. Hagemann did opine that Chrys/er violated the standard of care

when it operated its powerhouse well, knowing that it would result in the

discharge of PCE and TCE into the storm sewer system, but his report makes no

reference to Aramark in connection with a “powerhouse well.”

Citing CERCLA: case law, Plaintiffs also argue that the term “disposal” can

include permitting hazardous waste to migrate off-site. Plaintiffs, however, are

not seeking relief under CERCLA and, even if they were, the Sixth Circuit has held

that passive migration does not constitute a “disposal” under CERCLA. Bob’s

Beverage, Inc. v. Acme, Inc., 264 F.3d 692, 697-98 (6th Cir. 2001) (citing United

States v. 150 Acres of Land, 204 F.3d 698, 704 (6th Cir. 2000)).

Aramark’s alleged failure to investigate and remediate contamination to

prevent off-site migration is addressed in Certified Issue #7. The Court agrees

with Aramark that, because Plaintiffs have presented no expert witness opinion on

the question of whether Aramark breached the standard of care with respect to its

handling or disposal of TCE or PCE, there is no reason to reach the question of

3 CERCLA is the Comprehensive Environmental Response, Compensation and

Liability Act of 1980, 42 U.S.C. 8 9601, et seq.

14

foreseeability in the context of Certified Issue #2. Given that there are no genuine

issues of material fact, the Court SUSTAINS Aramark’s motion for summary

judgment on Certified Issue #2.

Old Carco likewise seeks summary judgment on Certified Issue #2. Unlike

with Aramark, Plaintiffs have presented expert witness testimony that creates a

genuine issue of material fact on the underlying question of whether Chrysler

negligently handled or disposed of TCE and/or PCE.

Matt Hagemann first opines that Chrysler breached the standard of care

with respect to its handling of the TCE and PCE in connection with the “post hole”

incident. In 1987, Chrysler drilled a hole through the concrete floor in Building

40B to install a guard post. Oil and water containing TCE and PCE seeped up

through that hole. For several months, the liquid was dipped out of the hole at

least every two weeks and placed in a 55-gallon drum. In 1988, however, the

liquid overflowed the hole. An internal memo stated, “we do not want hazardous

waste spilling on the floor and being tracked through the plant.”4

Hagemann opines that Chrysler violated the standard of care by drilling the

post hole without consulting maps showing six storm sewer pipes under Building

40B, by failing to report to the National Response Center the release of a

4 The parties disagree over the proper interpretation of this memo. Plaintiffs

maintain that it indicates that hazardous waste had a/ready been tracked through

the plant. Old Carco maintains that it indicates that Chrysler intended to take

preventative action so that hazardous waste wou/d not be tracked through the

plant. Both interpretations are reasonable.

15

reportable quantity of hazardous waste, and by failing to produce evidence of

proper disposal of the liquid taken from the post hole.

Hagemann also opines that Chrysler breached the standard of care with

respect to the pumping of the powerhouse well, which was used as a backup for

cooling water. In 1989, high levels of chlorinated solvents were detected in that

well. In 1990-91, in an attempt to evaluate the contamination levels in the

groundwater, Chrysler, against the advice of one of its managers, decided to

pump the powerhouse well for 90 days. Over those three months, 90 million

gallons of contaminated water was discharged into the storm sewers. Hagemann

opines that Chrysler’s operation of this well, knowing that it would result in the

discharge of TCE and PCE into the storm sewer system and interconnected rivers

and streams in the area, violated the standard of care.®

Hagemann further opines that Chrysler breached the standard of care in

July of 1998, when it failed to report that levels of TCE exceeding acceptable

screening limits were found in liquid pumped from one of its sewers. He also

notes that there is no evidence of proper disposal of this contaminated liquid.

Old Carco disagrees with Hagemann’s conclusion that Chrysler’s conduct

related to these incidents violated the applicable standard of care. It notes that

5 Old Carco argues that, because Chrysler had a permit for industrial discharges,

the discharge from the powerhouse well cannot be considered a “disposal” of

hazardous waste under RCRA. 42 U.S.C. § 6903(27); 40 C.F.R. §261.4(a)(2); 40

C.F.R. § 261.3. As Plaintiffs note, however, this does not necessarily preclude a

finding that Chrysler was negligent under Ohio law.

16

much of the challenged conduct occurred prior to the enactment of federal

statutes and regulations regulating the use of TCE and PCE, and argues that

Hagemann’s reliance on later-adopted provisions to establish the standard of care

is flawed. Hagemann’s expert witness opinions, however, are also based on his

extensive training and experience. The Court finds that Hagemann’s report and

deposition testimony are sufficient to create a genuine issue of material fact on

the question of whether Chrysler’s conduct violated the standard of care with

respect to its handling and disposal of TCE and/or PCE.®

Old Carco next argues that Hagemann provides no causal connection

between the allegedly improper disposal of TCE and PCE and the vapor intrusion

in Plaintiffs’ homes. Although the question of proximate cause is ultimately one

for the jury, it is also intertwined with the question of foreseeability. Certified

Issue #2 asks whether it was foreseeable to Chrysler that its improper handling

and disposal of TCE and/or PCE could cause the Plumes of contamination and

subsequent injuries.

With respect to the post-hole incident, Old Carco notes that Hagemann

admits that the contaminated liquid taken from the hole was put in 55-gallon

6 Old Carco points out that Hagemann has identified no violations of the standard

of care related to its operational handling of TCE and PCE prior to the time

Chrysler phased out their use in the early 1980s. The three incidents identified by

Hagemann occurred several years later. The Court, however, rejects Old Carco’s

suggestion that Chrysler could no longer “handle” TCE and/or PCE after ceasing

their operational use. These VOCs were still present on Chrysler’s property such

that they could be “handled” and “disposed of” even after Chrysler stopped using

them.

17

drums. There is, however, no evidence showing how Chrysler disposed of those

drums. Old Carco maintains that, even if some small amount of contaminated

liquid were tracked through the plant, there is no evidence of a nexus between

that and the vapor intrusion in the Class Areas.

These points are well-taken. Hagemann has also opined, however, that it

was Chrysler’s fa//ure to report the release of a reportable quantity of hazardous

waste removed from the post hole that allowed the TCE and PCE to spread off-site

to Plaintiffs’ properties. He maintains that, if Chrysler had complied with reporting

requirements in 1987, the environmental agencies could have determined

whether there was a need for a response action and taken steps to prevent off-site

migration. This supports a finding that it was foreseeable that Chrysler’s

improper handling of TCE and PCE could cause the Plumes and subsequent

injuries.

With respect to the TCE found in the pipes when Chrysler cleaned its

sewers in 1998, Old Carco notes that there is no evidence that the TCE was

improperly disposed of. Hagemann, however, again opines that Chrysler violated

the standard of care by failing to report a reportable quantity of hazardous waste,

thereby delaying a regulatory response that would have led to efforts to prevent

the further spread of contaminants to Plaintiffs’ properties. Again, this supports a

finding of foreseeability.

With respect to the discharge of 90 million gallons of contaminated water

from the powerhouse well into the city storm sewer, Old Carco notes that

18

Hagemann admitted that he had not specifically looked at how that discharge

could have caused vapor intrusion in the Class Areas. For example, he did not

know exactly where the sewer pipes traveled or whether the pipes in the Class

Areas had any leaks. Plaintiffs note, however, that clay sewer pipes were

discovered in 1987 when Chrysler dug the post hole in the same building where

the powerhouse well was located and, according to Hagemann, clay sewer pipes

are notoriously leaky. Moreover, when Chrysler discharged the contaminated

water from the powerhouse well, it did so against the advice of its own manager

who warned that pumping the well into the storm sewers could place the

corporation at risk. Based on the evidence presented, a reasonable jury could

find that it was foreseeable that Chrysler’s discharge of 90 million gallons of

contaminated water into the clay sewer pipes upgradient of Plaintiffs’ properties

would contaminate the groundwater and lead to vapor intrusion in Plaintiffs’

homes.

In the Court's view, Plaintiffs have presented sufficient evidence to create a

genuine issue of material fact concerning a causal connection between Chrysler's

alleged improper handling and disposal of TCE and PCE and Plaintiffs’ subsequent

injuries. The Court therefore turns to the question of foreseeability which is at the

heart of Certified Issue #2.

Old Carco argues that the risk of vapor intrusion was not reasonably

foreseeable at the time of the incidents in question. It maintains that, during the

relevant time period — the late 1980s and early 1990s — burial and evaporation

19

were common industrial disposal methods, and it was not yet understood that

spills or releases would harm the environment or create a risk of vapor intrusion.

Old Carco further notes that, even though the Ohio EPA was actively involved at

the site, it was not concerned about the risk of vapor intrusion until several years

later.

Hagemann, however, testified that the risk of vapor intrusion from

contaminated soil and groundwater was known as early as 1987. Doc. #379-5,

PagelD##18719-20, 18723-24. In addition, Plaintiffs cite to several peer-reviewed

articles from that time period addressing vapor intrusion pathways. See Nazaroff

et al., Experiments on Pollutant Transport from Soil into Residential Basements by

Pressure Driven Air Flow, 21 Environ. Sci. & Tech. 459-66 (1987); R.R. Dupont,

Measurement of Volatile Hazardous Organic Emissions from Land Treatment

Facilities, Air Pollution Control Ass'n 168-76 (1987); K. Garbesis & R.G. Sextro,

Modeling Field Evidence of Pressure Driven Entry of Soil Gas into a House

Through Permeable Below Grade Walls, 21 Environ. Sci. & Tech. 1481-87 (1989);

Kliest, et a/, The Relationship Between Soil Contaminated with Volatile Organic

Compounds and Indoor Air Pollution, 15 Env’t Int'l 419-25 (1989).

Based on the foregoing, the Court finds that genuine issues of material fact

preclude summary judgment on the question of whether it was foreseeable that

Chrysler's allegedly improper handling and disposal of TCE and/or PCE could

cause the Plumes and Plaintiffs’ subsequent injuries. Accordingly, the Court

OVERRULES Old Carco’s motion for summary judgment on Certified Issue #2.

20

Certified Issue #3 Whether Chrysler, Behr, and/or Aramark engaged

in abnormally dangerous activities for which they are strictly liable

Aramark, Behr and Old Carco have all moved for summary judgment on

Certified Issue #3. For the reasons set forth below, the Court finds that there are

no genuine issues of material fact and that Defendants are entitled to judgment as

a matter of law.’

The law imposes strict liability for harm caused by abnormally dangerous

activity. This legal doctrine has its roots in Ay/ands v. Fletcher, L.R. 3 H.L. 330

(1868), an English case involving a defendant who built a reservoir on his land.

Through no negligence of his own, the reservoir burst, causing water to flood and

damage plaintiff's neighboring coal mine. He was held strictly liable for damage

caused by his “non-natural” use of the land. “[I]t seems but reasonable and just

that the neighbor who has brought something on his own property which was not

naturally there, harmless to others so long as it is confined to his own property,

but which he knows to be mischievous if it gets on his neighbor's, should be

obliged to make good the damage which ensues if he does not succeed in

confining it to his own property.” /d.

Citing Rylands, along with Defiance Water Co. v. Olinger, 54 Ohio St. 532

(1896), and Bradford Glycerine Co. v. St. Marys Woolen Mfg. Co., 60 Ohio St. 560

7 Absent disputed facts, the court may find, as a matter of law, that an activity is

not abnormally dangerous. See e.g., Slack v. Fort Defiance Constr. & Supply, Inc.,

No. O3AP-1268, 2004 WL 2806310, at *3 (Ohio Ct. App. Dec. 7, 2004).

21

(1899), Plaintiffs argue that Ohio common law still provides for recovery under a

theory of strict liability for harm caused when a substance escapes from one’s

land and damages neighboring property. In Bradford Glycerine, a tank of

nitroglycerine exploded, damaging several nearby properties. The court held that,

because the storage of nitroglycerine is an extraordinary and unusual use of

property, the strict liability rule of Fletcher v. Rylands applied. 60 Ohio St. at 574-

75. Detiance Water, however, is inapposite. There, a decrepit water tank

collapsed, and the escaping water crushed a house located below. Although the

court discussed the Ay/ands’ holding, it found that the doctrine of strict liability

was inapplicable, given that the plaintiff sought damages only under a theory of

negligence. 54 Ohio St. at 540.

Defendants acknowledge that the doctrine of strict liability is rooted in

Rylands. They argue, however, that the doctrine has been narrowed significantly

and that the current relevant law is set forth in the Restatement (Second) of Torts

§§ 519 and 520 (1977). Section 519 establishes the elements of strict liability for

harm caused by abnormally dangerous activity as follows:

(1) One who carries on an abnormally dangerous activity is subject to

liability for harm to the person, land or chattels of another resulting from

the activity, although he has exercised the utmost care to prevent the harm.

(2) This strict liability is limited to the kind of harm, the possibility of which

makes the activity abnormally dangerous.

Restatement (Second) of Torts 8 519 (1977).

22

"Although Restatement Section 519 has never been explicitly adopted by

the courts of Ohio, the rule nevertheless appears to be an accurate restatement of □

Ohio law on this issue.” Doherty v. Ohio State Univ., No. 89AP-746, 1990 WL

86772, at *3n.1 (Ohio Ct. App. June 26, 1990) (citing Bradford Glycerine, 60 Ohio

St. 560; O'Day v. Shouvlin (1922), 104 Ohio St. 519; Walezesky v. Horvitz Co.

(1971), 26 Ohio St. 2d 146)). See also In re E./. du Pont de Nemours & Co. C-8

Pers. Inj. Litig., No. 2:13-MD-2433, 2015 WL 4092866, at *17 (S.D. Ohio July 6,

2015) (Sargus, C.J.) (noting that Ohio looks to the Restatement (Second) of Torts

to determine strict liability for abnormally dangerous activity); Brown v. Whirlpool

Corp., 996 F. Supp. 2d 623, 639 (N.D. Ohio 2014) (citing Restatement (Second) of

Torts 8 519).

Section 520 sets forth several factors which are relevant to the

determination of whether an activity is abnormally dangerous:

(1) existence of high degree of risk of harm;

(2) likelihood that resulting harm will be great;

(3) inability to eliminate the risk by the exercise of reasonable care;

(4) extent to which activity is not a matter of common usage;

(5) inappropriateness of activity to place where it is carried on; and

(6) extent to which value to the community is outweighed by dangerous

attributes.

Restatement (Second) of Torts § 520 (1977). Not all factors need be present,

especially if some factors weigh heavily. /d. at cmt. f.

As an initial matter, the Court must determine what the relevant “activity”

is in this case. Defendants maintain that it is the use, handling and disposal of

PCE and TCE. Plaintiffs, however, argue that the relevant activity is Defendants’

23

use, handling and disposal of PCE and TCE in a manner that allowed these

chemicals to escape onto Plaintiffs’ properties. The Court agrees with Old Carco

that Plaintiffs’ view conflates the doctrines of negligence and strict liability. Strict

liability imposes liability regardless of any action taken to mitigate the risk. The

relevant question, therefore, is whether, under Ohio law, the use, handling and

disposal of TCE and PCE constitutes an abnormally dangerous activity such that

Defendants are subject to strict liability regardless of fault.®

Under Ohio law, "[t]he types of activities that qualify as ultrahazardous/

abnormally dangerous is quite limited. . ..To come within the doctrine, courts

have found that the activity must have an immediate, high risk of great physical

harm to those in close proximity, which high risk cannot be reduced through the

exercise of due care.” /n re E./. du Pont de Nemours & Co. C-8 Pers. Inj. Litig.,

2015 WL 4092866, at *16 (citing Caveny v. Raven Arms Co., 665 F. Supp. 530, 532

(S.D. Ohio 1987) aff'd, 849 F.2d 608 (6th Cir. 1988)). See a/so Elmer v. S.H. Bell

Co., 127 F. Supp. 3d 812, 828 (N.D. Ohio 2015) (“Generally, Ohio courts only find

that an activity is ultrahazardous in four scenarios: blasting, transportation or

storage of explosives, cases involving dangerous animals, nuclear accidents, and

when examining ultrahazardous activity as an affirmative defense.”); Crawford v.

8 The parties have cited to dozens of cases from other states, some holding that

the use, handling and disposal of such chemicals constitutes an abnormally

dangerous activity and others holding that it does not. They acknowledge that

there is very little Ohio case law directly on point.

24

Nat. Lead Co., 784 F. Supp. 439, 444 (S.D. Ohio 1989) (Spiegel, J.) (holding that the

production of uranium constitutes an abnormally dangerous activity).

In the case of /n re E./. du Pont de Nemours & Co. C-8 Personal Injury

Litigation, Judge Sargus addressed the question of whether the use, generation

and release of C-8 (ammonium perfluorooctanoate) from an industrial plant

constitutes an abnormally dangerous activity under Ohio law. Noting the narrow

class of activities recognized as “abnormally dangerous,” he found that Ohio law

did not support a claim of strict liability in that case. 2015 WL 4092866, at *19.°

Having considered the relevant factors set forth in 8 520 of the Restatement,

this Court likewise finds that the use, handling and disposal of TCE and PCE does

not constitute an abnormally dangerous activity under Ohio law. The first factor

to be considered is existence of a high degree of risk of harm; the second is the

likelihood that the resulting harm will be great. Plaintiffs argue that these factors

weigh in their favor. They note that so many carcinogenic chemicals were

released that their entire neighborhood has been declared a Superfund site.

Defendants do not dispute that TCE and PCE are hazardous chemicals known to

® Plaintiffs cite to Green v. Begley Co., No. 1:08cv77, 2008 WL 4449065, at *3 (S.D.

Ohio Sept. 29, 2008), in which Judge Barrett held that the plaintiff, who alleged

that the defendant was engaged in abnormally dangerous activity based on the

use of chemicals used in the dry cleaning process, had adequately stated a claim

for strict liability under Ohio law. Given the fact that the court was ruling ona

motion to dismiss and had to accept the facts alleged as true, and given the lack

of any discussion of relevant Ohio case law, the Court gives little weight to the

Green opinion.

25

cause cancer in humans. Nor do they dispute the gravity of the resulting harm.

They note, however, that the use, handling and disposal of TCE and PCE poses no

immediate risk of great physical harm to those in close proximity in the same way

that explosives or dangerous animals might. See /n re E./. du Pont de Nemours &

Co. C-8 Pers. Inj. Litig., 2015 WL 4092866, at *16.

More importantly, however, the high degree of risk associated with these

industrial solvents can be largely eliminated with the exercise of reasonable care.

Old Carco notes that Plaintiffs themselves have admitted that the releases of TCE

at the Chrysler facility could have been avoided by the use of reasonable care.

The third favor therefore cuts heavily in favor of Defendants.

The fourth and fifth factors also cut heavily in Defendants’ favor. During the

relevant time period, TCE and PCE were commonly used as solvents in a wide

variety of industrial settings, including dry cleaning, metal degreasing and parts

cleaning. Given the numerous industries located in this particular area of Dayton,

jt cannot be said that it was inappropriate to use these chemicals in those

facilities. The fact that these industries were located directly north of the McCook

Field neighborhood does not change the equation.

For example, in Bradford Glycerine, the Ohio Supreme Court compared and

contrasted the risks associated with the storage of nitroglycerine with the risks

associated with the use of steam. Although both activities posed the risk of

explosion, the storage of nitroglycerin was fairly rare, whereas steam was

employed in almost every industry at that time. Without steam, the factories

26

where people worked would not exist. As such, unlike the storage of

nitroglycerine, the steam boiler could not be deemed such a menace that it must

be “driven from the centers of population.” 60 Ohio St. at 572-73. The court held

that, in the case of steam boilers, “a modification of the strict rule of liability in

favor of those who employ [them],” may be warranted. /d. at 573. As was the

case with the steam boilers, TCE and PCE were widely used in many industrial

settings during the relevant time period. As such, although the use of these

chemicals posed certain health risks, strict liability is not necessarily warranted.

The final factor to be considered is the extent to which value to the

community is outweighed by dangerous attributes. The industries that used the

TCE and PCE provided employment to local residents. They also provided

valuable services such as dry cleaning and the manufacturing of automotive parts.

On the other hand, the use of these chemicals posed significant risks to the people

in the nearby homes. This factor does not weigh heavily in favor of either party.

Having reviewed all relevant factors and Ohio case law addressing the

question of what constitutes an abnormally dangerous activity, the Court

concludes, as a matter of law, that the use, handling and disposal of TCE and PCE

does not fall within the very narrow scope of activities for which Ohio imposes

strict liability. The Court therefore SUSTAINS Defendants’ motions for summary

judgment on Certified Issue #3."°

10 Given the Court’s finding that Defendants cannot be held strictly liable for their

use, handling or disposal of TCE and PCE, the Court need not address the

27

Certified Issue #6: Whether Chrysler and/or Aramark’s contamination,

and all three Defendants’ inaction, caused class members to incur the

potential for vapor intrusion, and Certified Issue #7: Whether

Defendants negligently failed to investigate and remediate the

contamination at and flowing from their respective Facilities

Aramark, Behr and Old Carco have all moved for summary judgment on

Certified Issues #6 and #7. Having considered the parties’ arguments and the

evidence presented, the Court concludes that genuine issues of material fact

preclude summary judgment in favor of any defendant on these two issues.

Certified Issue #6 asks whether Chrysler and/or Aramark’s contamination,

and all three Defendants’ inaction, caused class members to incur the potential for

vapor intrusion. Aramark and Old Carco note that the Court has already held that

the mere potentia/ for vapor intrusion is not a cognizable injury. To recover

damages, each Plaintiff must prove that vapors exceeding risk-based

concentrations have actua/ly invaded their homes. Defendants maintain that this

is the law of the case, and that Certified Issue #6 is, therefore, irrelevant.

The Court disagrees that the issue is irrelevant. Although the mere

potential for vapor intrusion is not independently actionabie, Certified Issue #6

goes to the question of genera/ causation. Unless the jury determines that a

particular Defendant's acts or omissions were capab/e of causing vapor intrusion

question of successor liability. Likewise, it need not address the question of

whether Behr, even though it never used TCE or PCE in its own manufacturing

process, can nevertheless be held strictly liable for its alleged conduct in allowing

chemicals previously generated by Chrysler to migrate off-site.

28

in the Class Areas, there is no need to address the other elements of Plaintiffs’

claims against that Defendant. However, if general causation is established, the

question becomes whether specific causation exists, /e., whether that Defendant’s

acts or omissions actually caused vapor intrusion in each of the affected

properties.

The remainder of Aramark’s motion for summary judgment on Certified

Issues ##6 and 7 hinges entirely on the admissibility of the testimony of Matt

Hagemann, Plaintiffs’ standard-of-care expert. Aramark argues that, without his

expert witness testimony, Plaintiffs cannot prove negligent failure to investigate

and remediate the contamination. Given that the Court has overruled Defendants’

joint motion to strike Hagemann’s report and testimony, Aramark’s arguments in

this regard are moot. The Court therefore OVERRULES Aramark’s motion for

summary judgment on Certified Issues ##6 and 7.

In its motion for summary judgment, Behr argues that summary judgment

is warranted on Certified Issues ##6 and 7 because, based on the evidence

presented, Plaintiffs cannot establish that Behr’s alleged inaction proximately

caused contamination in the plumes or any injury to Plaintiffs. Behr again argues

that, according to Plaintiffs’ expert, Nicole Sweetland, the plumes were formed

and the contamination migrated off-site long before Behr purchased the Chrysler

property in 2002. Behr maintains that nothing it could have done after that date

would have remediated the existing plumes. It also notes that, at the time of the

29

purchase, Chrysler was already working with the Ohio EPA to remediate the

contamination.

The Court, however, agrees with Plaintiffs that a reasonable jury could find

that Behr’s inaction contributed to the plumes and caused the potential for vapor

intrusion. Expert witness testimony shows that the off-site migration of TCE and

PCE continued after 2002 and continues to this day. According to Sweetland,

some of the monitoring wells located off site actually showed /ncreasing levels of

TCE in the groundwater after 2003. Moreover, Hagemann opines that if Behr had

taken action to investigate and remediate the contamination when it bought the

property from Chrysler, this would have reduced or prevented additional

contamination across the Class Areas. Doc. #374-6, PagelD#15923."’ He maintains

that, regardless of what remedial efforts Chrysler was already engaged in, Behr

had an independent duty to investigate and remediate the contamination.

The Court concludes that there is a genuine issue of material fact as to

whether Behr’s inaction caused at least some class members to incur the potential

for vapor intrusion.”2 Accordingly, the Court OVERRULES Behr’s motion for

summary judgment on Certified Issues ##6 and 7.

1 Citing Ohio Model Jury Instructions on proximate cause, Plaintiffs note that so

long as Behr’s inaction was a “substantial factor” in producing the harm, it does

not matter that there were other proximate causes of Plaintiffs’ injuries.

12 The Court need not, and does not, address Plaintiffs’ alternative argument

concerning the continuing tort doctrine.

30

As to Certified Issues #6 and #7, Old Carco argues that summary judgment

is warranted because, based on the evidence presented, no reasonable jury could

find that its alleged acts or omissions were the proximate cause of vapor intrusion

in the Class Areas, or that Plaintiffs’ injuries were foreseeable at the time. These

topics were already addressed to some degree in the Court’s discussion of

Certified Issue #2, which focused on the foreseeability of whether Chrysler’s

improper handling and disposal of TCE and/or PCE could cause the Plumes of

contamination and subsequent injuries. Certified Issues #46 and 7 focus on

Chrysler's alleged fa//ure to investigate and remediate.

With respect to proximate cause, Matt Hagemann notes that, as early as

1987, after Chrysler discovered contaminated liquid in the post hole, consultants

recommended that Chrysler investigate nearby aquifers and groundwater users,

collect additional samples and install groundwater monitoring wells. He opined

that, if Chrysler had heeded these recommendations, “the extent of contamination

in soil and groundwater would have been delineated and on-and-off-site

remediation could have been undertaken, preventing the spread to the

downgradient neighborhood.” Doc. #361-3, PagelD#12896.

Old Carco, however, argues that, because the groundwater contamination

which allegedly led to the vapor intrusion occurred prior to 1987, Plaintiffs cannot

establish that Chrysler’s inaction was the but-for cause of the alleged injuries. Old

Carco contends that the damage occurred before Chrysler was aware of the need

to investigate or remediate. Old Carco reasons that all releases of TCE and PCE

31

would have occurred prior to the early 1980s, when Chrysler ceased using them.

Citing Nicole Sweetland, Old Carco argues that the VOCs would have traveled to

the Class Areas within approximately seven years, /.e., by 1987. According to Old

Carco, Chrysler's alleged failure to investigate and take action to prevent off-site

migration following the discovery of contaminated liquid in the post-hole in 1987

could not have been the cause of the vapor intrusion.

Plaintiffs, however, maintain that Old Carco has mischaracterized

Sweetland’s report. Sweetland opined that the upper aquifer beneath the

Chrysler-Behr facility was contaminated with TCE and PCE no later than 1989 and

that TCE from the facility would have encompassed the “Behr-DTP Plume area”

and reached the Great Miami River, on average, by 1996. Doc. #379-15,

PagelD##19052-53. Under this scenario, a reasonable jury could find that

Chrysler's alleged inaction following discovery of the contaminated liquid in the

post hole in 1987 was a substantia! factor in producing Plaintiffs’ injuries.”

As to foreseeability, Old Carco again argues that the alleged injury--vapor

intrusion--was not foreseeable prior to the early 2000s. It notes that the USEPA

did not issue draft vapor intrusion guidance until 2002, and no other

comprehensive guidelines for the assessment of the vapor intrusion pathway

‘3 Plaintiffs also note that even if some contamination were already present in the

Class Areas in 1987, there is no proof that the entirety of the Class Areas were

contaminated prior to that date.

32

existed prior to that time. Old Carco further notes that the Ohio EPA did not

consider the risk of vapor intrusion at the site until 2006."

Plaintiffs’ expert, Matt Hagemann, however, testified that vapor intrusion

risks were foreseeable as early as 1987, and that a reasonable person would have

investigated those risks. Doc. #379-5, PagelD##18719-20, 18723-24. Old Carco

disagrees with this opinion and claims that it is speculative. As previously noted,

however, Plaintiffs have cited to several peer-reviewed articles from that time

period addressing vapor intrusion pathways. Accordingly, the Court rejects Old

Carco’s claim that Hagemann’s assessment of foreseeability is too speculative to

withstand summary judgment.

For these reasons, the Court OVERRULES Old Carco’s motion for summary

judgment on Certified Issues ##6 and 7.

Certified Issue #4: Whether contamination from the Chrysler-

Behr Facility underlies the Chrysler-Behr and Chrysler-Behr-

Aramark Class Areas, and Certified Issue #5: Whether

contamination from the Aramark Facility underlies the

Chrysler-Behr-Aramark Class Area

Plaintiffs and Old Carco have each moved for summary judgment on

Certified Issues ##4 and 5. In its motion for summary judgment, Old Carco argues

14 In support, Old Carco submitted the Declaration of Justin Kelley, an

environmental contractor who performed work at the site. Doc. #365-4. Plaintiffs

object to his Declaration on the basis that he was not disclosed as an expert

witness. Old Carco notes, however, that Kelley is not offering expert opinions, but

rather testifying about facts he observed firsthand. It further notes that Kelley was

disclosed as a non-retained expert and potential fact witness.

33

only that Certified Issues ##4 and 5 cannot stand on their own. It argues that, if

the Court grants summary judgment on the other Certified Issues, these two

issues are legally irrelevant. The Court agrees. Nevertheless, given that the Court

has overruled the motions for summary judgment related to the negligence-based

claims asserted against Old Carco, the Court OVERRULES Old Carco’s motion for

summary judgment on Certified Issues ##4 and 5.

in their motion for summary judgment, Plaintiffs argue that, even though

the parties’ experts do not agree on the exact size, contours or concentrations of

the two plumes of contamination, there is substantial overlap in their opinions.

More importantly, there is no genuine issue of material fact as to whether TCE

and/or PCE emanating from the Chrysler-Behr and Aramark facilities underlies at

least some portion of the relevant Class Areas. Expert witnesses Nicole

Sweetland, Peter Mesard, Jon Rohrer and David Folkes are all in agreement on

this point. Plaintiffs therefore maintain that summary judgment is appropriate on

Certified Issues ##4 and 5. Behr concedes that summary judgment on these two

certified issues may be warranted.'® Old Carco and Aramark do not.

As to Certified Issue #4, Old Carco argues that genuine issues of material

fact concerning the scope and extent of TCE and/or PCE migration from the

Chrysler facility preclude summary judgment. Old Carco acknowledges that

'S Behr reiterates, however, that there is no evidence that Behr used TCE or PCE

after purchasing the Chrysler facility in 2002. It therefore denies any suggestion

that it contributed to the contamination in either plume.

34

Chrysler used TCE and PCE, and that some quantities of these chemicals migrated

off-site and are likely contained in the groundwater beneath certain portions of the

Class Areas. It denies, however, that this contamination currently underlies the

entirety of the Class Areas. Old Carco maintains that, over the years, the plumes

of contamination attributable to Chrysler have shrunk in size. It further argues

that the contamination in some portions of the Class Areas is wholly attributable

to third parties."®

However, it is irrelevant to Certified Issue #4 whether contamination

attributable to the Chrysler facility currently underlies the entirety of the Class

Areas. Likewise, it is irrelevant to the question certified whether some of the

contamination currently underlying the Class Areas is attributable to third parties.

These inquiries are relevant only to the questions of specific causation and

damages and will be addressed at the individual trial phase. Certified Issue #4,

however, is directed at the question of general causation.” The experts agree that

contamination from the Chrysler-Behr facility underlies at least some portion of

16 Old Carco has admitted, however, that in some portions of the Plumes, the TCE

and PCE contamination is so comingled that individual sources cannot be

determined.

7 Old Carco argues that a summary judgment ruling on Certified Issue #4 will not

aid efficiency because expert testimony on timing, concentrations, sources,

impacts and proportional contributions of TCE and PCE by Defendants and others

will be required to. prove proximate causation and damages during the individual

trial phase. Certified Issue #4, however, does help establish general causation.

Unless contamination from the Chrysler-Behr facility underlies the Class Areas,

there is no need to reach these other questions.

35

both Class Areas. The Court therefore SUSTAINS Plaintiffs’ motion for summary

judgment on Certified Issue #4.

Aramark argues that summary judgment is not warranted on Certified Issue

#5. Like Old Carco, Aramark notes multiple disputes concerning the sources of

the contaminants underlying the Class Area, the concentrations of the

contaminants, the timing of the alleged releases, the effects of those releases, and

the extent of the contamination. There are also disputes concerning whether PCE

from Aramark reached the entire Chrysler-Behr-Aramark Class Area.'® For the

reasons set forth above, the Court finds that these disputes do not preclude

summary judgment on the question certified.

Aramark maintains that there are genuine issues of material fact concerning

whether TCE contamination in the Chrysler-Behr-Aramark Plume is attributable to

Aramark. There is no evidence that Aramark ever used TCE or directly released

any TCE into the environment. Nevertheless, it is undisputed that PCE was used

at the facility, was found in underground storage tanks there, and was found in

high concentrations in groundwater monitoring wells downgradient of the facility.

The experts agree that PCE can degrade into TCE. Jon Rohrer, Aramark’s expert

witness, has opined that, given the aerobic nature of the shallow portion of the

18 Aramark also challenges numerous factual statements made in connection with

Plaintiffs’ motion for summary judgment, but most are irrelevant to the question

certified and need not be addressed at this time. For example, the question of

when Aramark became aware that PCE contamination was migrating from the

facility is irrelevant to the question of whether such contamination underlies the

Class Area.

36

groundwater south of Aramark’s facility, it is unlikely that the degradation of PCE

allegedly emanating from that facility to TCE is occurring at a significant level. He

did, however, find that some degradation was occurring.

Moreover, Rohrer specifically attributes some of the contamination in the

Chrysler-Behr-Aramark Plume to the Aramark property. There is no genuine issue

of material fact concerning whether contamination from the Aramark facility

underlies at least some portion of the Chrysler-Behr-Aramark Class Area. The

Court therefore SUSTAINS Plaintiffs’ motion for summary judgment on Certified

Issue #5.

IV. Conclusion

For the reasons set forth above, the Court:

e SUSTAINS Plaintiffs’ Motion for Partial Summary Judgment (Doc.

#359);

e SUSTAINS IN PART AND OVERRULES IN PART Defendant Aramark

Uniform & Career Apparel’s Motion for Partial Summary Judgment

(Doc. #360);

e SUSTAINS IN PART AND OVERRULES IN PART Mahle Behr

Defendants’ Motion for Summary Judgment (Doc. #362); and

e SUSTAINS IN PART AND OVERRULES IN PART Old Carco, LLC’s

Motion for Summary Judgment (Doc. #365).

37

Genuine issues of material fact preclude summary judgment on Certified

Issues ## 1,6 and 7. Although Aramark is entitled to summary judgment on

Certified Issue #2, Old Carco is not. Defendants are entitled to summary judgment

on Certified Issue #3, and Plaintiffs are entitled to summary judgment on Certified

Issues ##4 and 5.

V. Special Interrogatories

In July of 2020, the parties submitted separate proposed Special

Interrogatories via email, followed by briefs in support and responses, Docs.

##326, 327, 328, 329. The parties were able to resolve some, but not all, of their

disagreements concerning the proposed Special Interrogatories to be submitted

to the jury. The Court’s ruling on the motions for summary judgment has negated

the need for some of those Special Interrogatories. It may also have clarified

some of the disputed issues and raised other questions not previously considered.

Given that trial is scheduled to begin on October 17, 2022, the Court would

like to finalize the Special Interrogatories as soon as possible so that counsel has

adequate time to prepare for trial. The Court DIRECTS counsel to confer and file,

no later than close of business September 6, 2022, Joint Amended Proposed

Special Interrogatories to be submitted to the jury.

To the extent that there are still areas of disagreement, they should be

noted therein, along with a written explanation for the disagreement. The Court

will resolve those disputes as quickly as possible.

38

Date: August 10, 2022 _thyeest Make

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

39