Petition for Writ of Certiorari — Westinghouse Electric Corp. v. Freier

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Supreme Cort, U.S.

1 PILED

— OFFICE O& THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

WESTINGHOUSE ELECTRIC CORPORATION, et al.,

Petitioners,

RAYMOND FREIER, individually, as Administrator of the

Estate of Rose Freier, deceased, and as surviving spouse of

Rose Freier, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

PETITICGN FOR WRIT OF CERTIORARI

NIXON PEABODY LLP

Susan C. Roney

Counsel of Record

Laurie Styka Bloom

Vivian M. Quinn

Mark Molloy

On the Petition

1600 Main Place Tower

Buffalo, New York 14202

(716) 853-8100

Attorneys for Petitioners

- - - 7

QUESTIONS PRESENTED

The 1986 Superfund Amendments and Reauthorization

Act (“SARA”) amendments to the Comprehensive

‘Environmental Response, Compensation, and Liability Act

(“CERCLA”) include a provision, 42 U.S.C. § 9658, that

establishes a federal accrual date for certain actions “brought

under State law for personal injury, or property damages.”

The federal accrual date is defined as “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.”

The questions presented are:

1. Whether this federal accrual rule for state law tort

claims violates the Commerce Clause and Tenth

Amendment of the United States Constitution.

2. Whether under this objective discovery rule, and in

the absence of diligent investigation by plaintiffs,

accrual may be postponed or tolled as long as there is

information questioning causation.

i. ee a

LIST OF THE PARTIES TO THIS PROCEEDING

The following parties are Petitioners in this proceeding:

WESTINGHOUSE ELECTRIC CORPORATION

GENERAL MOTORS CORPORATION

CURTISS-WRIGHT CORPORATION

OCCIDENTAL CHEMICAL CORPORATION

WASTE MANAGEMENT OF NEW YORK, INC.

BROWNING-FERRIS INDUSTRIES, INC.

ALLIED WASTE SYSTEMS, INC., formerly known as

Laidlaw Waste Systems, Inc.

LITTON SYSTEMS, INC.

WARNER-LAMBERT COMPANY

FORD MOTOR COMPANY

NIAGARA MOHAWK POWER CORPORATION

NEW YORK STATE ELECTRIC & GAS CORPORATION

DRESSER INDUSTRIES, INC.

AMERICAN STANDARD INC.

CARBORUNDUM COMPANY

TRICO PRODUCTS CORPORATION

E. I. DUPONT DE NEMOURS & COMPANY

Each of the Petitioners was named as a defendant or a third

party defendant in the complaints underlying this Petition

and was an appellee/cross-appellant in the court of appeals.

The following parties are Respondents in this

proceeding:

RAYMOND FREIER, individually, as Administrator of the

Estate of Rose Freier, deceased, and as surviving spouse of

Rose Freier,

ROSE FREIER, his spouse,

iii

ARTHUR L. PHILLIPS, Administrator of the Estate of Leo

Phillips, deceased, and Dorothy Phillips, as the surviving

spouse of Leo Phillips,

TAB FUQUA,

CHARLOTTE MUCHA, individually, as Executrix of the

Estate of Alfred G. Mucha, deceased, and as surviving

spouse of Alfred Mucha,

JOHN FARINO, Administrator of the Estates of Mary Jane

Farino and Robert Farino, deceased, _

GRACE ASTOR, individually, and as surviving spouse of

Evo T. Astor, deceased,

HARRY BASINSKI, SR..,

ELLEN BASINSKI, his spouse,

KATHY KAMINSKI, Administratrix of the Estate of

Joseph Inzinna, deceased,

MARY YLMAR,

MARIE MANOLIS, Executrix of the Estate of Louis

Manolis, deceased, and individually as the surviving spouse

of Louis Manolis, legal representative of the Estate of Leo

Ott, deceased, and Administratrix of Mary M. Sturm,

deceased,

WILLIAM NIELSEN,

BETTY BARABASZ, Executrix of the Estate of George

Pagels, deceased,

GLORIA PAGELS, individually as the surviving spouse of

George Pagels,

JOSEPH GRANDILLO, Executor of the Estate of Stephen

Grandillo, deceased,

SHIRLEY KUCZKA, Executrix of the Estate of Henry

Kuczka, deceased, and individually as the surviving spouse

of Henry Kuczka,

MARY ANN BOXHORN, Executrix of the Estates of Leo

and Annabel Foisset, deceased,

EILEEN FOLTS, Administratrix of the Estate of Helen

Hancock, deceased,

FRANKLIN MUELLER,

FLORA MUELLER, his spouse,

ROBERT S. FIELS,

DELORES FIELS, his spouse,

IRENE M. MARINO, legal representative of the Estate of

Anthony J. Marino, deceased, individually as the surviving

spouse of Anthony J. Marino,

NANCY FORMAN,

CARL P. FORMAN, SR., her spouse,

JOSEPH J. WIEDENBECK, JR., legal representative of the

Estate of Isabelle A. Wiedenbeck and Joseph J.

Wiedenbeck, Sr., deceased,

LINDA KISTKA, legal representative of the Estate of

Nelson M. Hirsch, deceased,

~ NELLY ANTHONY, legal representative of the Estate of

Diane Anthony, deceased,

ELEANOR JASINSKI, legal representative of the Estate of

Leocadia Jasinski, deceased,

GEORGE SCHERRER, JR., legal representative of the

Estate of George Scherrer, Sr., deceased,

MARIE SCHERRER, individually as the surviving spouse

of George Scherrer, Sr., deceased,

VERONICA A. ZAWATSKI, legal representative of the

Estate of Robert Zawatski, deceased, and individually as

surviving spouse,

MICHAEL LAMANCUSO,

MARLENE LAMANCUSO, his spouse,

THOMAS SZYPLMAN, legal representative of the Estate

of Victoria Szyplman, deceased,

GERALDINE DAVIES,

MORLEY P. DAVIES, her spouse,

KEVIN BATT, individually, as Administrator of the Estate

of Charles W. Batt, deceased, and Executor of the Estate of

Rose E. Batt, deceased,

PATRICIA BATT, his spouse,

DONNA MCKOWAN,

DONALD MCKOWAN, her spouse,

NORMAN WAGNER,

PATRICIA WAGNER, his spouse,

EILEEN EWERT, Administratrix of the Estate of EV® T.

ASTOR, deceased,

THOMAS F. HEWNER, Public Administrator of the Estat

of Lorraine E. Brzezicki, deceased,

LAWRENCE HEANEY, legal representative of the Estate

of Gretchen Heaney, deceased

MARIE MARTZOLF, Executrix of the Estate of Robert

Martzolf, deceased, and individually as surviving spouse,

JACQUELINE MONGIOVI, Executrix of the Estate of

Vincent Mongiovi, deceased and individually as his

surviving spouse.

Each of these Respondents were plaintiffs in separate

lawsuits filed in the district court and were appellants and

cross-appellees in the court of appeals.

The following parties were named defendants or third-party

defendants in the district court, but are not petitioning this

Court:

LANCASTER STONE PRODUCTS CORPORATION

BRYAN PFOHL

PAUL M. PFOHL

PFOHL BROTHERS

PFOHL ENTERPRISES

TOWN OF CHEEKTOWAGA

W.S. TYLER, INC.

HOWDEN FAN COMPANY, formerly known as Buffalo

Forge Company.

The UNITED STATES OF AMERICA intervened in the

court of appeals on the constitutional questions. Notice has

been given to the United States of this Petition pursuant to

Rule 29.4(b).

TABLE OF CONTENTS

QUESTIONS PRESENTED ........ccccccosscscessessescoscssescoreoscessees i

LIST OF PARTIES TO THE PROCEEDINGB...............0++5 li

TARE GE FAS TRIE 6 iB cvvsetrseccnserevsteonecsnaseectontesonnetvnten ix

STATEMENT PURSUANT TO RULE 239.6 ...........0000000 XiV

TABLE GF APP REID vxceccesscnisttecinerensnecntnesenenescesceses XVii

STATEMENT PURSUANT TO RULE 29.4(b)............. XViii

PETITION FOR A WRIT OF CERTIORARI...........000e0005 |

OPI II sicesincnctinvvvsncvenisrsnrsistininianiibinsibitiibtinaiies |

STATEMENT OF JURISDICTION ............sccsscressessessersesees |

CONSTITUTIONAL/STATUTORY PROVISIONG.......... l

STA ERGOT S CR SEES CARS wecccecosscssconncencesnreneneecsvnesioetes 2

REASONS FOR GRANTING THE WRIT ...........:ccccceseeeees 5

I. THE FRCD EXCEEDS CONGRESS’ POWER

UNDER THE COMMERCE CLAUSE AND

‘VIOLATES THE TENTH AMENDMENT ................- 5

A. By Upholding The FRCD Under The Commerce

Clause, The Second Circuit Gives Congress

Expansive Power In Contravention of United

States v. Lopez And Its Progeny ...............ssess0ees 6

vii

1. The FRCD Exceeds Commerce

EER See cee ers ae 7

2. The Effect CERCLA As A Whole May

Have On Interstate Commerce Does Not

gt PENA eS 8

B. The FRCD Violates The Tenth Amendment

By Impermissibly Impinging On State

PN i tiitihnieiictatiakeliiteciinatiiiiletsidiiaiasscisanen 10

1. In Establishing A Federal Accrual Rule

For State Tort Claims, Congress Has

Commandeered State Legislative Process .... 11

2. Application Of The FRCD To Wrongful

Death Claims Raises Additional Tenth

Amendment Concen6ns .........00..:ccsccccccoccosseecee 15

C. Certiorari Is Warranted To Address The

Federalism Concerns Raised By The FRCD ....... 16

II. THE COURT SHOULD HALT THE EXPANSION

Of THE WELL-ESTABLISHED DISCOVERY

I RIE ic petennicssieisncsesstnitenssnanennsessiesssins 17

A. The FRCD Does Not Permit Tolling

Or Extension Of Accrual Until Such Time

As A Plaintiff's Claim Is No Longer

The Subject Of Controversy ............c.ccccccsesesseseeee 18

B. Certiorari Should Be Granted To Resolve The

Conflict Among The Circuits As To Whether

“Subjective Factors” May Extend Accrual.......... 21

C. Circuits That Embrace An Expansive Discovery

Rule Delay Accrual Indefinitely, In Essence

Preventing Summary Disposition Of Claims On

D. Plaintiffs Who Fail Diligently To Inquire

Should Not Receive The Benefit Of An

Expanded Discovery Rulle................ccssssssesseseeees 28

E. Certiorari Is Warranted Now Because:

1) Accrual Plays A Pivotal Role In Latent

Injury Claims And 2) Disparate Application Of

The Discovery Rule Will Result In Further

EE Gr a IN csitiietiticeticsenticcneetecnesmseseceeee 29

CORNEA ccavecssccesereseseseossesenseceusvsosonesnasunssnscossntesnsosees 30

TABLE OF AUTHORITIES

FEDERAL CASES

ABB Indus. Sys. v. Prime Tech., 120 F.3d 351

| aR RT ee Oe

Arvayo v. United States, 766 F.2d 1416

NE ERT

Barren v. United States, 839 F.2d 987 (3rd Cir.),

cert. denied, 488 U.S. 827 (1988) ...........:ececeseseseeees

Barrett v. United States, 689 F.2d 324 (2d Cir. 1982),

cert. denied, 462 U.S. 324 (1982) .........ccceceseseseseeees

Brazzell v. United States, 788 F.2d 1352

Ree SS! d ee

Cada v. Baxter Healthcare Corp., 920 F.2d 446

(7th Cir. 1990), cert. denied, 501 U.S. 1261 (1991)

Carey v. Kerr-McGee Chem. Corp., 999 F. Supp.

FS its UE iinicshoencesiiichisnclidaapiiepibinessestitaniene

Chamness v. United States, 835 F.2d 1350

EERE ee a a ae

Doe v. American National Red Cross, 923 F. Supp.

a I I caiestitibilivitindticiistinlsandebninatensisheneneiions

Dubose v. Kansas City Southern Railway Co., 729

F.2d 1026 (Sth Cir.), cert. denied, 469 U.S. 854

Geeta nay cttcesictsnchichlicnschbindlabantcelstaiiesehevsiidasbisheddiibetboedes

Exxon Corp. v. Hunt, 475 U.S. 355 (1986) .............000000 8, 14

FERC v. Mississippi, 456 U.S. 742 (1982) .........ccsccceseeeee 12

Fidler v. Eastman Kodak Co., 714 F.2d 192

CE Aa Ge iiccicdahianhnnsnsesiesaieeialisainibiaiahindninisitiaihie 22, 27, 28

Fries v. Chicago & Northwestern Transp. Co.,

Fe Fe Be CPG, CE neentittreneneptesinnsctrsensnsations 23

Gnazzo v. G.D. Searle & Co., 973 F.2d 136

Ce Se. UE wiclaiteiiciabniclcisantleicinhicineihniehiceiaitcoecuaiina 26, 27

Gonzalez v. United States, 284 F.3d 281

Ei ee eiceeiciethvnslteesicesaiptibceiniibiebicshieectniihaichiaptininbilitbek 22

Gould v. U.S. Dept. of Health & Human Services,

905 F.2d 738 (4th Cir. 1990), cert. denied,

Se Ar IE UTTER ciessinsistansiinaisessenieicnhpasinleiainiiauiniiticniadiinen 21

Gregory v. Ashcroft, 501 U.S. 452 (1991) ...........ccseeeeeees 17

Grimmett v. Brown, 75 F.3d 506 (9th Cir.),.

cert. denied, 518 U.S. 1003 (1996) ...............cccesseeeeeees 29

Hodel v. Virginia Surface Mining & Reclamation

Mae, 452 GS. BOS CGS) ns cencsicrssieversesvressecresssnnosecsi 12

Hughes v. Vanderbilt Univ., 215 F.3d 543

Uk NN tiinsticelasiennlsabcineteaibeincelicilcpnleasevinatiniit 18, 23

Johnson v. Railway Express Agency, Inc.,

SE Che ee aii itiinrsllipnl insists 11

Jones v. United States, 529 U.S. 848 (2000)...............002 6 -7

a Ee ee

Kansas Pub. Employees Retirement Sys. v. Blackwell,

114 F.3d 679 (8th Cir. 1997), cert. denied, 522

Shel PPR EE ses Rlaieihisscosonsinosiadivsicilsbatsciniiteninebiaic 26

Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997)......... 20, 29

Kronisch v. United States, 150 F.3d 112

Ge eth I iiieriiassiiecipbateccet lac iorctnid bi tiated 26, 27

Lampert v. Norfolk & Western, 1992 U.S. App.

LaSIuES 15516 COG Cir. 1992). .oicccaserersirersssvsesovesescseres 22

Lane County v. Oregon, 74 U.S. (7 Wall.) 76 (1868)....... 12

Moore v. CSX Transportation, Inc., 1992 U.S. App.

LEXIS 6490 (4th Cir. 1992).............cc.cccssccsssossesescenseces 22

Nemmers v. United States, 795 F.2d 628

NNN: SUTIN iliuceiswiicabiiaslesiseiiesiaiesiatdabtdeesenscictasdatesccils 18, 23

New York v. United States, 505 U.S. 144 (1992) ...10, 12-13

NLRB v. Jones & Laughlin Steel Corp.,

Pe a ivi isadeiaededbsbiesnbsnedleslilbichancasbicnblbeviseenseal 6

O'Connor v. Boeing North American, Inc.,

FEE Fe SA es BI wiciinsicsnceslecineciisctintltanvisciltcs 24

Osborn v. United States, 918 F.2d 724 (8th Cir. 1990).....24

Plaza Speedway, Inc. v. United States, 311 F.3d 1262

Se: SID hiatal cMeacsnceibl tient einsisatanionnnioiesnniencensi 23

Printz v. United States, 521 U.S. 898 (1997) .............. 13, 14

xii

Rosales v. United States, 824 F.2d 799

Ie CRE, SE ED iicsinivctssnneceevncicinrentiicitinnitinisionanicmnniaai 24

Rotella v. Wood, 528 U.S. 549 (2000)............0000+ 18, 20, 30

Sea-Land Servs. v. Gaudet, 414 U.S. 573 (1974)......... 15-16

Solid Waste Agency v. United States Army Corps of

Bag 78, S51 UD. TIP GIG ccccepesescenenssatinnviinnmnsinsiis 6-8

The Harrisburg, 119 U.S. 199 (1886)...............csscscssssssess 15

Tolston v. AMTRAK, 102 F.3d 863 (7th Cir. 1996).....23, 27

United States v. Kubrick, 444 U.S. 111 (1979)........... 18-22,

. 26, 28-29

United States v. Lopez, 514 U.S. 549 (1995) ....... 6-9, 16-17

United States v. Morrison, 529 U.S. 598 (2000)............. 6, 8

Urie v. Thompson, 337 U.S. 163 (1949) ..............+. 18-19, 28

Wells v. Norfolk Southern, 1997 U.S. App. LEXIS

SOF es BD cicenvinesvreninivsirntimnvssiceininaniiieigelial 22-23

Wilson v. Garcia, 471 U.S. 261 (1985) ...........ceeserceeeseees 11

Wood v. Carpenter, 101 U.S. 135 (1879).............scsee00 29-30

CONSTITUTION

Commerce Clause, Art. 1, § & ....cccccocscssssecoserevesvecsseses 1, 6-9

FE Biss sistiecvitvsiniinnnieieniteccaiiiitciancnsiibiait 1, 10-17

FEDERAL STATUTES

28 U.S.C. § ae pthaietbininetyecnsiinienees 1

adh inciiddsansenieiensecteciacccaseccesseevevcoee 15

a sc csneeensnenssascnsescsosecenes i

inca aciecseescscdsenscessecinscrsncensceececess 9

adil clscsecpneetenscnsinccseessesesseccoreses 9

A re Oe iris cecicsnscicnsccccecscosssecscesccvcesccscees snes 12

Nee cscscsesuscaseqssccesesceees 9

Rial anipaelivencaneisasensdccesasccocesvesecicees passim

I I eth actencsddissedsdssncnctenesessceevcccccoceesecseee 15

I eiilairticestoeenicthinseknesatebiscoseccessccececccssese 15

STATE STATUTES

PF ee BG oon cnanccsesscsnsecsncsncsccvcescocceserseseses 11

SE RI A I ai rrescsenscecsscsnsnccscsscisoccconeceeccceesees 16

MISCELLANEOUS

Joseph M. McLaughlin, Practice Commentaries to

CPLR 214-c (McKinney’s 1990)............c.ccccssecssseseeeees 16

New York Civil Practice - Estates, Powers and Trusts

Law ¥ 5-4.1[13] (Matthew Bender 1996)..................... 16

XiV

STATEMENT PURSUANT TO RULE 29.6

Pursuant to Supreme Court 29.6, Petitioners provide this

Corporate Disclosure Statement for all nongovernmental

corporate parties:

American Standard Inc.

American Standard Inc. is wholly owned by American

Standard Companies Inc., a holding company.

ee ee ee ee ae ee

Browning-Ferris Industries of New York, Inc.

Browning-Ferris Industries of New York, Inc. is a wholly

owned subsidiary of Allied Waste Industries, Inc.

The Carborundum Company

The Carborundum Company is now known as Industrial

Holdings, Corp. Industrial Holdings, Corp. is wholly owned

by its parent company Lehman Brothers Holdings, Inc.

Curtiss-Wright Corporation

Curtiss-Wright Corporation has no parent corporation and no

publicly held company owns more than 10% of its stock.

Dresser Industries, Inc.

DII Industries, LLC is a successor to Dresser Industries, Inc.,

and is a wholly owned subsidiary of Halliburton Company.

E.I. du Pont deNemours & Company |

DuPont has no parent corporation and no publicly held ;

company owns 10% or more of its stock.

Ford Motor Company

Ford Motor Company has no parent corporation and no

publicly held company owns 10% or more of its stock.

General Motors Corporation

General Motors Corporation has no parent corporation and

no publicly held company owns 10% or more of its stock.

Howden Fan Company

Howden Fan Company is now known as Howden Buffalo,

Inc. Howden Buffalo, Inc. is a wholly owned subsidiary of

Anderson Group, Inc.

Laidlaw Waste Systems, Inc.

Laidlaw Waste Systems, Inc. (now known as Allied Waste

Systems, Inc.) is wholly owned by Allied Waste North

America, Inc.

Lancaster Stone Products Corporation

Lancaster Stone Products, LLC, formerly known as Lancaster

Stone Products Corporation, is a privately held entity and no

publicly held company owns 10% or more of its stock or

membership interest.

Litton Systems, Inc.

Litton Systems, Inc. (incorrectly sued as Litton Industries,

Inc.), is a wholly owned subsidiary of Litton Industries, Inc.

Litton Industries, Inc. is a wholly owned subsidiary of

Northrop Grumman Corporation.

New York State Electric & Gas Corporation

New York State Electric & Gas Corporation is a wholly-

owned subsidiary of RGS Energy Group, Inc., which is a

wholly-owned subsidiary of Energy East Corporation.

Niagara Mohawk Power Corporation

Niagara Mohawk Power Corporation is a subsidiary of

National Grid USA, whose parent is National Grid Group

PLC.

xvi

Occidental Chemical Corporation ;

Occidental Chemical Corporation is a wholly owned

subsidiary of Occidental Petroleum Corporation.

Trico Products Corporation

Trico Products Corporation is wholly owned by Stant

Corporation.

Warner-Lambert Company

Warner-Lambert Company is a wholly owned subsidiary of

Pfizer Inc.

Waste Management of New York, Inc. “

Waste Management of New York, Inc. is now known as

‘Waste Management of New Jersey, Inc.

Waste Management of New Jersey, Inc. is wholly owned by

Waste Management Holdings, Inc.

Waste Management Holdings, Inc. is wholly owned by

Waste Management, Inc.

Westinghouse Electric Corporation

Westinghouse Electric Corporation is a wholly owned

subsidiary of Viacom Incorporated, successor to CBS

Corporation.

W.S. Tyler, Inc.

By Stipulation entered September 12, 1996, this party was

dismissed from all actions.

XVii

TABLE OF APPENDICES

Appendix A The opinion and order of the United States

Court of Appeals for the Second Circuit, 303

F.3d 176 (2d Cir. 2002)

Appendix B The opinion and order of the United States

District Court for the Western District of New

York, 26 F. Supp. 2d 512 (W.D.N.Y. 1998)

Appendix C The opinion and order of the United States

District Court for the Western District of New

York, 68 F. Supp. 2d 236 (W.D.N.Y. 1999)

Appendix D United States District Court for the Western

District of New York, Amended Final

Judgment, Arcara, J.

Appendix E Order of the United States Court of Appeals

for the Second Circuit denying rehearing,

entered October 8, 2002

Appendix F Full text of 42 U.S.C. § 9658

Appendix G_ Table of state wrongful death statutes

Appendix H Portions of A Report To Congress In

Compliance With Section 301(e) Of The

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (P.L.

96-510) By The “Superfund Section 301(e)

Study Group”

xviii

STATEMENT PURSUANT TO RULE 29.4(b)

Because the proceedings draw into question the

constitutionality of 42 U.S.C. § 9658, contained in an Act of

Congress, and neither the United States nor any federal

department, office, agency, officer or employee is a party, 28

U.S.C. § 2403(a) may apply.

PETITION FOR A WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Second Circuit.

OPINIONS BELOW

The opinion of the Second Circuit was entered on August

15, 2002, is reported at 303 F.3d 176 (2d Cir. 2002), and is

reprinted in Appendix A to this petition (“Pet. App.”). The

opinions of the District Court for the Western District of New

York, entered October 27, 1998 and September 22, 1999, are

reported at 26 F. Supp. 2d 512 (W.D.N.Y. 1998) and 68 F.

Supp. 2d 236 (W.D.N.Y. 1999), and are reprinted in

Appendices B and C respectively.

STATEMENT OF JURISDICTION

The Second Circuit decision was entered on August 15,

2002. Petition for rehearing en banc was denied on October

8, 2002. See Appendix E. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1). Notice pursuant to Rule

29.4(b) has been given to the United States Solicitor General.

CONSTITUTIONAL/STATUTORY PROVISIONS

Commerce Clause: “The Congress shall have Power . . . [t]o

regulate Commerce with foreign Nations, and among the

several States .. .” U.S. Const., Art. 1, § 8.

Tenth Amendment: “The powers not delegated to the United

States by the Constitution, nor prohibited by it to the states,

are reserved to the states respectively, or to the people.”

U. S. Const., Amend. X.

Exception to State statutes: In the case of any action brought

under State law for personal injury, or property damages,

which are caused or contributed to by exposure to any

hazardous substance, or pollutant or contaminant, released

into the environment from a facility, if the applicable

limitations period for such action (as specified in the State

statute of limitations or under common law) provides a

commencement date which is earlier than the federally

required commencement date, such period shall commence at

the federally required commencement date [defined as “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”’] in lieu of the date specified in such

State statute. 42 U.S.C. § 9658 (a)-(b)(4)(A). The full text of

42 U.S.C. § 9658 is set forth at Appendix F.

STATEMENT OF THE CASE

From 1930 to 1969, the 120-acre Pfohl Brothers Landfill

(“the Landfill” or “the Site”) was openly operated just

outside Buffalo, New York. Following its closure in 1969,

nearby residents and others began to question the potential

for health risks associated with the Site. In the 1980s,

_attention to potential health hazards from the Site increased.

The government identified substances at the Site and

conducted tests regarding their potential impact on the

surrounding area. The Site was listed on the Federal National

Priorities List and on New York State’s first Registry of

Inactive Hazardous Waste Sites and was classified as “a

significant threat to the public health or environment - action

required.” The State fenced the Site and erected large, bright

yellow signs warning: “DANGER HAZARDOUS WASTE

AREA UNAUTHORIZED PERSONNEL KEEP OUT.” The

State Departments of Health (“DOH”) and Environmental

Conservation (“DEC”) issued letters, updates and fact sheets

regarding the Site, established a toll free information number

and community liaisons, a public document repository,

visited area residents, and conducted a health survey of

residents and businesses. By the end of 1991 there had been

at least 28 public meetings, dozens of mailings and broadcast

Stories, over 100 newspaper articles, and numerous persons,

including experts, had publicly asserted a connection

between health risks, including cancers, and the Site.

Plaintiffs allege that they (or their decedents) lived,

worked or recreated in the vicinity of the Site and were

exposed to unspecified hazardous substances, causing various

illnesses. Over half of the plaintiffs were personal

representatives of individuals who had died as long ago as

1953. The injuries alleged by the living plaintiffs were

diagnosed as early as 1963. It was not until many years later,

however, in a series of lawsuits filed between January 10,

1995 and September 8, 1998, that plaintiffs commenced these

diversity actions against the alleged owner/operators,

generators or transporters of waste to the Site.

Plaintiffs acknowledge that they failed to inquire as to the

possible cause of their injuries. Rather, although they had

retained attorneys in the Spring of 1994, each and every

plaintiff contends that he did not actually “discover” the

alleged cause of his (or his decedent’s) injuries and thus his

claims did not accrue until December 1994 when his attorney

and litigation expert advised him his injuries may be causally

related to the Landfill. Admitting their claims were time-

barred under any interpretation of New York law, plaintiffs

asked the trial court to assign December 1994 as the accrual

date for their claims. Plaintiffs alleged that this was the date

the federal required commencement date statute (“FRCD”),

42 U.S.C. § 9658, would afford them under its “knew or

reasonably should have known” standard.

Decisions Below

Defendants moved for summary judgment challenging

the constitutionality of the FRCD on Commerce Clause and

Tenth Amendment grounds and arguing that the FRCD’s

express language disallowed its application to plaintiffs’

claims. Defendants also argued that plaintiffs’ claims were

untimely even if the FRCD was applied, because under a

“knew or reasonably should have known” standard, given the

amount of available information regarding the Landfill and

potential for health problems associated with the Site,

plaintiffs’ claims accrued as a matter of law at the latest by

the end of 1991.

The district court upheld the FRCD on constitutional

grounds and held that, despite its express application to

“claims under state law for personal injury or property

damage,” the FRCD also applied to plaintiffs’ wrongful death

claims. Thus, the district court denied defendants’ motion for

dismissal of the wrongful death claims. Pet. App. B at 147a.

In addressing accrual of plaintiffs’ claims under the FRCD,

the district court found, however, that “sufficient information

was available prior to 1992” such that plaintiffs reasonably

should have discovered “the possible existence of a claim

based on their cancers,” i.e. they should have discovered

information suggesting a causal relationship between

exposure and their injuries by the end of 1991 at the latest.

Pet. App. C at 178a. The court held that under the FRCD

rule the plaintiffs’ personal injury claims accrued no later

than the end of 1991, and, since the plaintiffs did not

commence suit until in or after 1995, their claims were time-

barred. Pet. App. C at 197a. This holding was then applied

to the wrongful death claims, and they, too, were dismissed

as untimely. See Amended Final Judgment, Appendix D.

Plaintiffs appealed the dismissal of their claims to the

Second Circuit. Defendants cross-appealed challenging the

constitutionality of the FRCD and the district court’s

application of the FRCD to wrongful death and survival

claims. The Second Circuit upheld the FRCD on

constitutional grounds and affirmed the district court’s

expansion of the FRCD to wrongful death claims. In

interpreting the “knew or reasonably should have known”

is.

accrual rule of the FRCD, the Second Circuit focused on what

plaintiffs argued was information questioning a causal

connection between the Landfill and their alleged injuries.

The circuit court gave weight to plaintiffs’ contention that,

had they inquired, they would have been lulled into delaying

suit by reassurances of non-parties that their injuries may not

have been caused by the Landfill. The Second Circuit held

that an issue of fact exists as to whether “plaintiffs reasonably

should have known prior to the end of 1991 that the Landfill

was the cause of the injuries.” Pet. App. A at 6la. The

decision cited no legal authority other than the FRCD for the

standard it applied that permitted plaintiffs to delay accrual

beyond the date when information is available to suggest a

causal connection between exposure to the Landfill and

plaintiffs’ injuries, thus putting them on notice of their claims.

REASONS FOR GRANTING THE WRIT

I. THE FRCD EXCEEDS CONGRESS’ POWER

UNDER THE COMMERCE CLAUSE AND

VIOLATES THE TENTH AMENDMENT.

The “federally required commencement date” sets a

federal accrual date for state tort claims. This act of

Congress is unconstitutional for two reasons. Engrafting

federal accrual dates onto state law statutes of limitations

governing state law claims constitutes regulation of non-

economic and local activities, in violation of the Commerce

Clause. Further, the imposition of a federal accrual rule for

State law tort claims effectively changes state law and erases

the line separating state and federal powers, in violation of

the Tenth Amendment.

This Court should grant certiorari to halt this expansion

of federal powers and invasion of state sovereignty, to correct

a misinterpretation of this Court’s prior constitutional rulings,

and to clarify the limits of Congressional authority.

A. By Upholding The FRCD Under The Commerce

Clause, The Second Circuit Gives Congress

Expansive Power In Contravention of United States v.

Lopez And Its Progeny.

The Commerce Clause of the United States Constitution

protects inherently non-economic and local activity from the

reach of Congress’ regulatory powers. This Court has

reaffirmed the proposition that “the grant of authority to

Congress under the Commerce Clause, though broad, is not

unlimited” and has declined to expand the Commerce

Clause’s reach to activities that on their face have no relation

to interstate commerce. See Solid Waste Agency v. United

States Army Corps of Eng’rs, 531 U.S. 159, 173 (2001);

United States v. Lopez, 514 U.S. 549, 551 (1995); see also

Jones v. United States, 529 U.S. 848 (2000); United States v.

Morrison, 529 U.S. 598 (2000).

Congress may regulate those activities that substantially

affect interstate commerce.

ee, ee ee ee

[T]he scope of the interstate commerce power “must

be considered in light of our dual system of

government and may not be extended so as to

embrace effects upon interstate commerce so

indirect and remote that to embrace them, in view of

our complex society, would effectively obliterate the

distinction between what is national and what is

local and create a completely centralized

government.”

Lopez, 514 U.S. at 557 (quoting NLRB v. Jones & Laughlin

Steel Corp., 301 U.S. 1, 37 (1937)).

Because the setting of accrual dates for state law claims is

non-economic, local in nature, and does not “substantially

affect” interstate commerce, the FRCD is an impermissible

exercise of Congress’ Commerce Clause powers.

1. The FRCD Exceeds Commerce Clause Limits.

The activity regulated by the FRCD (setting a federal

accrual date for select state law personal injury and property

damage claims) “has nothing to do with ‘commerce’ or any

sort of economic enterprise, however broadly one may define

those terms.” Lopez, 514 U.S. at 561. When it enacted the

FRCD, Congress made no findings regarding any impact the

accrual of state law torts claims would have on interstate

commerce. A change in accrual rules for state law tort claims

has no effect on CERCLA’s purpose of remediating the sites

of past disposal. The FRCD also lacks any jurisdictional

element that limits its reach to a “discrete set of [activities]

that additionally have an explicit connection with or effect on

interstate commerce.” Jd. at 562. Instead, the FRCD applies

to a wide range of state law claims, regardless of the parties

involved, the amount in controversy, or the source of the

alleged hazardous substances underlying the claim.

By definition, the FRCD applies only to Jocal claims. 42

U.S.C. § 9658 (a) (“actions under state law for personal

injury and property damages”). The activity regulated by the

FRCD, accrual of those state law claims, is likewise “local.”

If it was not for the FRCD, state law would govern the

accrual of these state law claims. CERCLA does not provide

for private tort liability. For obvious reasons, states have

traditionally managed these claims. This Court has cautioned

that the federal government should not tread upon such areas.

See, e.g., Lopez, 514 U.S. at 577 (Kennedy, concurring)

(“Were the Federal Government to take over the regulation of

entire areas of traditional state concern, areas having nothing

to do with the regulation of commercial activities, the

boundaries between the spheres of federal and state authority

would blur...”); Jones, 529 U.S. at 858; Solid Waste Agency,

531 U.S. at 174.

Based on the non-economic and local nature of the

activities at issue, this Court has held that the Commerce

Clause does not permit federal regulation of guns in a school

zone (Lopez), civil remedies for victims of domestic violence

(Morrison), and the protection of migratory birds in intrastate

waters (Solid Waste Agency). Any purported connection the

accrual of state law claims might have to interstate commerce

is even more remote than the connections rejected in Lopez,

Morrison, and Solid Waste Agency.

2. Any Effect CERCLA As A Whole May Have On

Interstate Commerce Does Not Justify The FRCD.

In evaluating whether the FRCD exceeds Congress’

Commerce Clause powers, the Second Circuit does not

examine the FRCD alone, but rather attempts to bootstrap the

commercial effects of CERCLA onto the FRCD. Pet. App. A 7

at 45a (“it is not necessary that each element of the regulatory |

scheme have a substantial connection with commerce when

viewed in isolation”). However, reliance on the larger

regulatory scheme to justify a particular aspect fails where, as

here, the legislation at issue “is not an essential part of a

larger regulation of economic activity, in which the

regulatory scheme could be undercut unless the intrastate

activity were regulated.” Lopez, 514 U.S. at 561.

The FRCD is not an essential part of CERCLA. In fact,

the FRCD concerns an activity otherwise untouched by

CERCLA. Congress did not create a federal toxic tort cause

of action in CERCLA or otherwise. Exxon Corp. v. Hunt,

475 U.S. 355, 359 (1986). CERCLA was enacted to

facilitate the clean up of inactive hazardous waste sites, and

the FRCD does not relate to CERCLA’s primary focus. Id.

It applies to tort claims that are not part of any CERCLA

litigation and that have no relation to any CERCLA site.

Congress commissioned a study in 1980 to examine the

adequacy of existing common law and statutory tort

remedies, including “barriers to recovery posed by existing

state statutes of limitations.” 42 U.S.C. § 9651(e). The study

group recommended that the state legislatures amend their

State accrual rules to provide a discovery rule for hazardous

substance exposure cases. Relevant portions of the study are

reproduced at Appendix H. There was no recommendation

that Congress enact any law, much less a federally required

commencement date. Nonetheless, Congress included the

FRCD in its SARA amendments to CERCLA in 1986. There

is simply no basis for finding that CERCLA is dependent on

regulation of accrual of state tort claims.

The Second Circuit suggests that the FRCD may provide

incentive to parties to clean up inactive hazardous waste

sites, thus furthering the goals of CERCLA. Pet. App. A at

49a-50a. There is no evidence, however, that the FRCD

provides such an incentive or that any purported incentive is

“essential” to the overall scheme of CERCLA. Using

CERCLA as an example, the incentive to clean up CERCLA

sites existed prior to the enactment of the FRCD and is based

on the coercive powers of sections 106 and 107 of the statute.

42 U.S.C. §§ 9606-07. The notion that a postponement of the

accrual date for potential toxic tort cases has an impact on the

conduct of potentially responsible parties under CERCLA is

hypothetical, as Congress made no such finding.

CERCLA’s effect on interstate commerce provides no

basis for concluding that the FRCD has the same effect.

Federalizing accrual dates for state tort claims interferes with

State regulation of local claims which has traditionally been

left to the states, and, as such, “plows” new federal ground

and represents a “sharp break” with prior law. Cf. Lopez, 514

U.S. at 563. The FRCD fails the Commerce Clause test and

should be stricken as unconstitutional.

-10-

B. The FRCD Violates The Tenth Amendment By

Impermissibly Impinging On State Sovereignty.

The Tenth Amendment to the United States Constitution

provides that those powers not expressly granted to the

federal government are reserved to the states. For a statute to

be constitutional under the Tenth Amendment, Congress

must first have had the authority to regulate the activity

pursuant to one of the delegated powers under the

Constitution. New York v. United States, 505 U.S. 144, 157

(1992). As set forth above, Congress does not have the

power to regulate the accrual of state law claims, thus the

Constitutional analysis need go no further.

Even if Congress had the power to regulate in this area,

however, the method Congress chose for regulation of state

tort claims impermissibly invades state sovereignty. Jd. at

160. In enacting the FRCD, Congress focused on a single

aspect of state tort law (accrual) and regulated that aspect in

isolation. In so doing, Congress injected itself into the state

legislative process and effectively changed state law. This

method of regulation is impermissible under the Tenth

Amendment. See id. (even if Congress has the power to

regulate, it must do so in a way that does not otherwise

violate the Tenth Amendment).

In New York, this Court acknowledged that “the task of

ascertaining the constitutional line between federal and state

power has given rise to many of the Court’s most difficult

and celebrated cases.” Jd. at 155. As in New York, this case

raises a question of “great importance and delicacy,” namely

whether federal law may, in isolation, regulate accrual dates

for claims arising solely under state law. Id.

att.

1. In Establishing A Federal Accrual Rule For State

Tort Claims, Congress Has Commandeered State

Legislative Process.

The constitutional significance of the FRCD is best

revealed when the FRCD is viewed in context. Each state

has established policies and principles governing accrual of

the personal injury and property damages claims that arise

under state law. These policies and principles represent each

“State’s judgment on the proper balance between policies of

repose and the substantive policies of enforcement embodied

in the state cause of action.” Wilson v. Garcia, 471 U.S. 261,

263 (1985). For example, the New York State Legislature

has enacted Civil Practice Law and Rule Section 214-c,

which provides accrual rules for latent injury claims. This

Court has recognized that “{iJn virtually all statutes of

’ limitations, the chronological length of the limitation period

is interrelated with provisions regarding tolling, revival, and

questions of application.". Johnson v. Railway Express

Agency, Inc., 421 U.S. 454, 464 (1975).

The sole purpose and effect of the “federally required

commencement date” (FRCD) is to federally change state

accrual law (and indeed it is entitled “Exception to State

statutes”):

[I]f the applicable limitations period for [an action under

state law for personal injury or property damages] (as

specified in the State statute of limitations or under

common law) provides a commencement date which is

earlier than the federally required commencement date,

such period shall commence at the federally required

commencement date in lieu of the date specified in such

State statute. 42 U.S.C. § 9658(a)(1) (emphasis added).

Here, Congress did not create a federal cause of action,

but rather limited the FRCD’s application to state law claims.

42 U.S.C. § 9658(a)(1). Nor is the FRCD part of a larger

federal regulatory scheme to regulate tort claims or even

accrual of tort claims. No other aspect of CERCLA or

SARA regulates or addresses state law tort claims. In fact,

personal injury claims are not within the scope of CERCLA

liability, nor are personal injury damages recoverable under

CERCLA. See 42 U.S.C. § 9607(a). The FRCD expressly

provides that other aspects of state tort claims, including

statutes of limitations, continue to be governed by state law.

See 42 U.S.C. § 9658(a)(2) (“State law generally

applicable”). Without a compelling federal interest and in

the absence of a federal cause of action or federal regulatory

scheme, Congress inserted itself into the state legislative

process and changed state law to conform to federal dictates.

In this way, the FRCD violates the Tenth Amendment.

This Court has long held that the Tenth Amendment

prohibits the federal government from _ using state

governments to accomplish federal regulatory purposes. In

New York, this Court confirmed that Congress cannot compel

the states to regulate in a particular field or in a particular

way. New York, 505 U.S. at 161. Thus, federal action that

“would ‘commandeer’ state governments into the service of

federal regulatory purposes ... would for this reason be

inconsistent with the Constitution’s division of authority

between federal and state governments.” Jd. at 175. Such

action “has never been understood to lie within the authority

conferred upon Congress by the Constitution.” Jd. at 176.

A federal law directing a state to regulate in a specific

way “would be beyond the authority of Congress.” Jd. Even

where Congress has the authority under the Constitution to

pass laws requiring or prohibiting certain acts, “it lacks the

power directly to compel the States to require or prohibit

those acts.” Jd. at 166, citing FERC v. Mississippi, 456 U.S.

742, 762-766 (1982), Hodel v. Virginia Surface Mining &

Reclamation Ass'n, 452 U.S. 264, 288-289 (1981), and Lane

County v. Oregon, 74 U.S. (7 Wall.) at 76 (1868). These

-13-

principles were reaffirmed in Printz v. United States, 521

U.S. 898, 935 (1997), where this Court held “ijt matters not

whether policy-making is involved, and no case-by-case

weighing of the burdens or benefits is necessary; such

commands are fundamentally incompatible with our

constitutional system of dual sovereignty.”

The FRCD cannot be reconciled with these principles. If,

as established in New York, the Tenth Amendment prohibits

Congress from forcing a state to change its own law, may

Congress change the state law instead? The FRCD represents

a back door attempt to accomplish what the Constitution and

this Court have expressly forbidden.

By setting a federal accrual date for state law claims, the

FRCD appropriates the state legislative process in favor of

federal regulation of a state regulatory scheme. While the

means by which the FRCD accomplishes this appropriation

are not identical to those employed in New York, the end

result is the same and similarly violative of the Tenth

Amendment. Under the FRCD, states are prevented from

giving legal effect to the accrual laws they have enacted and

are instead forced to accept Congress’ change in state law.

Never before has this Court, under the Tenth Amendment, or

otherwise, endorsed the idea that federal law can nullify a

State’s ability to establish accrual rules for its own claims.

Just like the statute at issue in New York, under the FRCD,

States have no choice but to regulate in accordance with the

federal mandate. Any state regulation conflicting with the

federal mandate is rendered null and void by the FRCD.

The method employed by Congress in enacting the FRCD

represents a sharp break with established methods for

creating and enforcing federal rights. Congress enacted an

accrual rule for state tort claims in the absence of a federal

cause of action, and without a compelling federal interest or

federal regulatory scheme intended to occupy the field.

CERCLA was not enacted to compensate private parties for

harm resulting from discharges of hazardous substances. See

Exxon, 475 U.S. at 359 (CERCLA “seeks to facilitate

government cleanup”).

Relying on the Supremacy Clause, the Second Circuit

rejects the Tenth Amendment challenge, countering that the

FRCD “requires no action by a state’s legislative or executive

officials, but only the application of federal law by the courts

to recognize the Federal Commencement Date of a state-law

claim...” Pet. App. A at 5la-52a. This reliance, however, is

misplaced. A valid federal law, enacted pursuant to

Congress’ enumerated powers, will pre-empt contrary state

law. When that federal law lacks a constitutional foundation

and violates the sovereignty of state law, however, the

Supremacy Clause cannot save it. Thus, any suggestion that

the FRCD is a valid exercise of pre-emption misses the mark.

The Supreme Court succinctly rejected this same Supremacy

Clause argument in Printz, 521 U.S. at 924-25:

The Supremacy Clause ... makes “Law of the Land”

only “Laws of the United States which shall be made in

Pursuance [of the Constitution]” Art. VI, cl. 2, so the

Supremacy Clause merely brings us back to the question

discussed earlier, whether laws conscripting state

officers violate state sovereignty and are thus not in

accord with the Constitution.

Moreover, the FRCD is not, as the Second Circuit posits,

an instruction to a state court to apply federal law, but a

usurpation of the state legislative process by changing state

law. As previously noted by the Second Circuit, since the

FRCD appears to (and purports to) “change state law” it is of

“questionable constitutionality.” ABB Indus. Sys. v. Prime

Tech., 120 F.3d 351, 360 n.5 (2d Cir. 1997).

In enacting the FRCD, Congress manifested no intent to

exclusively occupy the field of accrual of state tort claims,

-15-

and the FRCD does not do so. Congress established this

federally required accrual rule in the absence of a

comprehensive federal regulatory scheme. The FRCD

constitutes random federal interference on an unsystematic

basis, and, as such, violates the Tenth Amendment.

2. Application Of The FRCD To Wrongful Death Claims

Raises Additional Tenth Amendment Concerns.

The Second Circuit materially alters the definition of a

personal injury action under state law by declaring that the

FRCD’s limited application to “personal injury” claims_may

include wrongful death claims. Pet. App. A at 38a (“{Ijn

light of the statutory scheme as a whole, [the FRCD] was

meant to encompass” wrongful death claims).' There is no

legislative history or other suggestion that Congress intended

this result. Applying the FRCD to wrongful death claims

further abrogates the Tenth Amendment.

A personal injury claim is separate and distinct from a

claim for wrongful death and each has its own statute of

limitation and accrual rules. In virtually every state,

including New York where these claims arose, wrongful

death claims are creatures of statute, unrecognized at

common law. See The Harrisburg, 119 U.S. 199, 214

(1886); see also chart of state wrongful death statutes,

Appendix G. Indeed, federal law recognizes the fundamental

distinction between wrongful death and personal injury

claims. See, e.g., Sea-Land Servs. v. Gaudet, 414 U.S. 573,

578 (1974) (“[A] single tortious act might result in two

' If Congress “meant” the FRCD to include wrongful death

actions it would have done so separately from personal injury

claims as it did in the Federal Tort Claims Act, 28 U.S.C.

§ 2672; the Federal Employers Liability Act, 45 U.S.C. § 51;

and Jones Act, 46 U.S.C. § 688.

-16-

distinct, though related harms, giving rise to two separate

causes of action...[a wrongful death action is] independent of

any action the decedent may have had for his own personal

injuries.”) (emphasis added).

In most states, including New York, a wrongful death

claim accrues on the date of death, without exception. See,

e.g., NY EPTL § 5-4.1. Typically, the discovery rule does

not apply to such claims. See Joseph M. McLaughlin,

Practice Commentaries to CPLR 214-c at 638 (McKinney’s

1990); New York Civil Practice - Estates, Powers and Trusts

Law ¥ 5-4.1[13] at 5-486 (Matthew Bender 1996). Under the

tule established by the Second Circuit, a wrongful death

claim may not accrue until decades after death when a

personal representative “discovers” the cause of the

decedent’s injury.” In this way, the Second Circuit’s decision

further substantially changes state law.

The Second Circuit disregards the balance that states

have struck in enacting wrongful death statutes. Such federal

interference with state statutory schemes has never been

sanctioned by this Court.

C. Certiorari Is Warranted To Address The Federalism

Concerns Raised By The FRCD.

The FRCD “forecloses the States from experimenting and

exercising their own judgment in an area to which states lay

claim by right of history and expertise[.]” Lopez, 514 U.S. at

583 (Kennedy, concurring). The Constitution requires a

distinction between what is truly national and what is truly

? For example, Eleanor Jasinski brought a wrongful death

claim on behalf of the estate of Leocadia Jasinski, who died

in 1953. Under New York’s wrongful death ste te the time

to bring this claim expired in 1955. Plaintiff, nowever, did

not commence suit until 1997, some 42 years later.

it2-

local. See id. at 567. The Court should reject this change in

state law and injection of a federal standard of accrual (indeed

a “federally required commencement date”) into state tort

claims, thus evading the boundaries between state and federal

authority and effectively changing state law. See Gregory v.

Ashcroft, 501 U.S. 452, 458 (1991) (“a healthy balance of

power between the States and the Federal Government will

reduce the risk of tyranny and abuse from either front”).

Il. THE COURT SHOULD HALT THE EXPANSION

OF THE WELL-ESTABLISHED DISCOVERY

RULE OF ACCRUAL.

In reinstating plaintiffs’ decades-old claims, the Second

Circuit expands the well-established discovery rule of accrual

and ignores the proper balancing of interests reflected in

accrual of state tort claims. The Second Circuit would allow

accrual to be indefinitely delayed based on a standard that

rewards meritless cases and that can never be met absent proof

of causation-in-fact. Even if knowledge of a cause of action

would otherwise be imputed to a plaintiff (i.e. even if a

reasonably diligent inquiry would lead a plaintiff to

information suggesting injury and causation), the court would

delay accrual until such time as counsel and a purported

expert urge plaintiff to commence a lawsuit. Even where a

plaintiff admittedly fails to inquire about a possible causal

connection between claimed exposure and known injury, the

Second Circuit would delay accrual if plaintiff points to

conflicting opinions as to causation (opinions he was never

aware existed at the time he claims they extended accrual).

Relieving a plaintiff of his duty to inquire and then

permitting him to delay accrual based on what he believes

inquiry might have revealed rewards the dilatory and makes

plaintiff the sole arbiter of accrual. This expansion of the

“knew or reasonably should have known” discovery rule is

wholly unwarranted and should be halted.

- 18 -

A. The FRCD Does Not Permit Tolling Or Extension Of

Accrual Until Such Time As A Plaintiff's Claim Is No

Longer The Subject Of Controversy.

Under a discovery rule of accrual such as the FRCD, a

claim accrues when a plaintiff knows, or with reasonable

diligence should have known, of a potential causal

connection between his injury and its alleged source. 42

U.S.C. § 9658; United States v. Kubrick, 444 U.S. 111, 117

(1979). This rule is an objective one and is not to be

subjectively applied. Urie v. Thompson, 337 U.S. 163, 170-

71 (1949); Hughes v. Vanderbilt Univ., 215 F.3d 543, 548

(6th Cir. 2000) (citations omitted); Nemmers v. United States,

795 F.2d 628, 631 (7th Cir. 1986) (employing objective

standard to evaluate question of when diligent plaintiff would

have discovered cause).

Discovery rules of accrual are intended to balance tie

notion of repose with the interests of plaintiffs in having an

adequate amount of time to discover potential claims. Repose

statutes are designed to apportion the consequences of the

passage of time between plaintiffs and defendants and to

preclude litigation of stale claims. Kubrick, 444 U.S. at 117;

Rotella v. Wood, 528 US. 549, 555 (2000) (rejecting

expansive discovery rule for RICO cases because it would

allow “litigation ... at odds with the basic policies of all

limitations provisions: repose, elimination of stale claims,

and certainty about a plaintiff's opportunity for recovery and

a defendant’s potential liabilities”).

Accrual marks the beginning of the period for plaintiff to

commence his lawsuit. Plaintiff then has the entire statutory

period to determine whether to commence suit, and more time

following commencement of his action to discover and

develop his proof for trial. Accrual is simply the first step in

this ongoing process. It is incumbent on plaintiff to

—_—

-19-

determine if there is a legal basis for suit, and he must file suit

within the limitations period.

Accrual rules for tort claims have evolved to reflect the

changing nature of such claims. Initially accrual was marked

by the accident date (or in the case of toxic cases, exposure

date). Then, as latent injury claims evolved, accrual mules in

many states were modified to provide that claims would not

accrue until a party “discovers” he was injured by an alleged

exposure. Today, some states (and now the FRCD) set

accrual as the date a party can fairly be charged with

knowledge of his injury and a potential causal relationship

between that injury and an exposure.

Since a “discovery” rule necessarily extends accrual, it

interferes with repose. Thus, since its inception, courts have

staunchly restricted the application of the discovery rule to

“blameless ignorance.” Urie, 337 U.S. at 170; Kubrick, 444

U.S. at 121; Barrett v. United States, 689 F.2d 324, 327 (2d

Cir. 1982), cert. denied, 462 U.S. 324 (1982). For purposes

of the accrual analysis, a plaintiff will be charged, as a matter

of law, with knowledge of all facts he reasonably could have

discovered by making a diligent investigation. Jd. A

plaintiff, “armed with the facts about the harm done to him,

can protect himself by seeking advice in the medical and legal

community. To excuse him from promptly doing so by

postponing the accrual of his claim would undermine the

purpose of the limitations statute, which is to require the

reasonably diligent presentation of tort claims. . .” Kubrick,

444 US. at 123. This is particularly true in this case where

there was no evidence submitted by plaintiffs that they “could

not have” discovered a causal connection due to lack of

medical or scientific information. In fact, plaintiffs’ expert

offered his opinion based solely on science and facts that

were otherwise known and available no later than 1991.

«2.

Moreover, given that the discovery rule may extend

accrual beyond exposure and discovery of injury, exceptions

to the rule are extremely limited. In the absence of fraudulent

concealment by defendant, plaintiffs are not permitted to rely

on subjective reasons to excuse their failure to assert their

claims in a timely fashion. See Rotella, 528 U.S. at 561

(“The virtue of relying on equitable tolling lies in the very

nature of such tolling as the exception, not the rule”); Klehr

v. A.O. Smith Corp., 521 U.S. 179, 192-93 (1997) (noting

distinctions between different equitable devices); Cada v.

Baxter Healthcare Corp., 920 F.2d 446 (7th Cir. 1990), cert.

denied, 501 U.S. 1261 (1991) (same). Absent a legal

justification for tolling the statute of limitations (or otherwise

estopping defendants from relying on these limitations), there

is no basis to postpone accrual. See id. To hold that

plaintiffs may raise a genuine issue of material fact as to

accrual based on conflicting evidence as to causation, results

in the exception becoming the rule and results in an issue of

fact for every statute of limitations determination.

Thus, in Kubrick this Court held that accrual of a medical

malpractice claim under the Federal Tort Claims Act is not

delayed until such time as plaintiff “discovers” a violation of

his legal rights. 444 U.S. at 358-59. The Kubrick Court

explicitly rejected the plaintiff's subjective excuses that

would have extended accrual until discovery that his medical

treatment constituted negligence. Jd. at 124, 127-28. In

particular, Kubrick rejected plaintiffs excuses that (i)

“experts” were divided on the crucial issues of negligence;

(ii) the issues were of “technical complexity”; (iii) plaintiff

relied on assurances by the Veteran’s Administration that he

had not been wronged; and (iv) plaintiff received bad advice

from his doctor. Jd. Kubrick stressed that “determining

negligence ... is often complicated and hotly disputed, so

much so that judge or jury must decide the issue after

listening to a barrage of conflicting expert testimony.” Jd. at

124 (citations omitted). This, however, is no basis for

extending accrual. See id. at 124, 127-28.

The reasons for rejecting these excuses have equal

application whether such excuses (i.e., bad advice, more than

one potential cause, conflicting experts, or technical

complexity) are offered to explain a plaintiff's failure to

“discover” a cause of action in negligence (duty, breach of

duty, causation) or failure to discover a potential cause of the

injury under the FRCD discovery rule. Such excuses have no

place in the evaluation of accrual.

The objective discovery rule may be harsh and may bar

otherwise valid claims, yet the plaintiff is obligated to

enforce his rights within the limitations period. Kubrick, 444

U.S. at 124-25; see also Gould v. U.S. Dept. of Health &

Human Services, 905 F.2d 738, 747 (4th Cir. 1990), cert.

denied, 498 U.S. 1025 (1991) (“We are not unmindful that a

strict adherence to the requirements of the statute of

limitations provision ... often works a substantial hardship on

plaintiffs and may have a harsh impact on a party innocent of

any impropriety. Statutes of limitations often make it

impossible to enforce what are otherwise valid claims.

Although we recognize the hardship resulting to the plaintiffs

in this case, we have no choice but to apply the law as

written”); accord Barren v. United States, 839 F.2d 987, 992

(3rd Cir. 1988), cert. denied, 488 U.S. 827 (1988).

B. Certiorari Should Be Granted To Resolve The

Conflict Among The Circuits As To Whether

“Subjective Factors” May Extend Accrual.

While the discovery rule is well-established, courts have

not been uniform in their application of the rule. Despite the

guidance provided in 1979 by this Court in Kubrick and

despite the well-established policies underlying accrual and

repose statutes, circuit courts are divided on whether excuses

—.

or other subjective factors may delay accrual in a discovery

rule analysis.

Many courts determining accrual under a discovery rule

have rejected excuses or subjective factors when offered by

plaintiffs to extend or delay accrual. For example, in

Gonzalez v. United States, 284 F.3d 281, 287 (1st Cir. 2002),

the First Circuit held that a claim accrues under the “knew or

reasonably should have known” standard when plaintiff has

notice of likely cause, actual or imputed. Gonzalez rejected

the argument that plaintiff's claims did not accrue until she

obtained an expert report. Jd. at 290-91; see also Fidler v.

Eastman Kodak Co., 714 F.2d 192, 199 (ist Cir. 1983)

(When a plaintiff is “on notice” of a potential claim, “his

cause of action is no longer inherently unknowable”

rejecting argument that action did not accrue until plaintiff

found attorney and doctor who would agree with her

assessment of her case). “[{O]nce the plaintiff is on notice of

the injury and its potential cause, the limitations period

begins to run, regardless of whether she makes inquiries and

continues to run even if she has been incorrectly advised.”

Gonzalez, 284 F.3d at 290 n.10 (citing Kubrick, 444 US. at

124).

In Moore v. CSX Transportation, Inc., 1992 U.S. App.

LEXIS 6490, *6 (4th Cir. 1992), the Fourth Circuit deemed

“without merit” plaintiff's contention that he “could not

possibly know the origin of his hearing loss until such cause

could be properly determined by expert medical opinion.”

See also Lampert v. Norfolk & Western, 1992 U.S. App.

LEXIS 13516, *3-4 (4th Cir. 1992) (rejecting plaintiffs

reliance on subjective factors or excuses to delay accrual).

The Sixth Circuit in Wells v. Norfolk Southern, 1997 U.S.

App. LEXIS 4347, *8-9 (6th Cir. 1997), rejected plaintiffs

arguments that he should not be held to the discovery rule

because he was an uneducated worker and merely thought his

23.

hearing loss was related to getting older and his employer

misled him about the cause of his loss. See also Hughes, 215

F.3d at 548 (plaintiff may be charged with constructive

knowledge even where she is unaware of pervasive media

attention; the relevant inquiry “is an objective one”).

The Seventh Circuit firmly rejects the idea that when a

plaintiff suspects several causes, accrual is delayed until the

governing, or even most probable, cause is known. See Fries

v. Chicago & Northwestern Transp. Co., 909 F.2d 1092,

1095-96 (7th Cir. 1990) (“The Court held in Kubrick that a

plaintiff must act diligently...upon experiencing symptoms a

plaintiff has a duty to investigate both the injury and any

suspect cause”); see also Tolston v. AMTRAK, 102 F.3d 863,

865-66 (7th Cir. 1996) (claim accrues even if it is difficult to

differentiate among various potential causes); Nemmers, 795

F.2d at 632 (“Kubrick said that the statute runs even if the

plaintiff, because of bad advice, is dissuaded from filing

suit.”).

The Tenth Circuit has reaffirmed the relevance of Kubrick

in Plaza Speedway, Inc. v. United States, 311 F.3d 1262 (10th

Cir. 2002). In reversing judgment for plaintiffs in a toxic

exposure case, the court held that plaintiffs’ claim accrued

when they were notified of the presence of contaminants in

their well at which time “they had reason to suspect the

source might have been the neighboring property.” There

was no basis for plaintiffs’ claim that accrual under a

discovery rule must be determined by the trier of fact or that

accrual should be delayed until somebody advised them of a

“definite” as opposed to a “possible” cause. Id. See also

Arvayo v. United States, 766 F.2d 1416, 1422-23 (10th Cir.

1985) (criticizing the district court for applying a subjective

standard for accrual and for imposing a duty to disclose on

doctors rather than a duty to inquire on plaintiffs; plaintiffs’

claim, filed after they fortuitously learned from their attorney

of a causal connection between the delay in diagnosis and

-2%4-

brain damage, was untimely because it was brought outside

the Federal Tort Claims Act’s two year statute of limitations).

Other circuits, however, including the Fifth, Eighth,

Ninth, and Eleventh, have adopted an expansive view of the

discovery rule and permit reliance on subjective factors to

extend accrual.

In Dubose v. Kansas City Southern Railway Co., 729 F.2d

1026, 1031 (Sth Cir.), cert. denied, 469 U.S. 854 (1984), the

Fifth Circuit delayed accrual based on “factors including how

many possible causes exist and whether medical advice

suggests an erroneous causal connection or otherwise lays to

rest a plaintiff's suspicion regarding what caused his injury.”

The Eighth Circuit in Brazzell v. United States, 788 F.2d

1352, 1356 (8th Cir. 1986), found that the district court “was

correct in disregarding appellee’s suspicions about the cause

of her injuries” due to reliance on incorrect medical advice.

See also Osborn v. United States, 918 F.2d 724, 733 (8th Cir.

1990) (as in Brazzell, holding that plaintiff was excused due

to alleged reliance on the bad advice of her doctors).

In O’Connor v. Boeing North American, Inc., 311 F.3d

1139 (9th Cir. 2002), reviewing the application of the FRCD,

the Ninth Circuit considered factors such as plaintiffs’

doctors’ failure to advise of possible causal link and other

conflicting evidence on cause. In replacing California’s

accrual rule, the O’Connor Court looked to “actual

knowledge” of cause and factors that questioned causation.

See also Rosales v. United States, 824 F.2d 799, 804 (9th Cir.

1987) (accrual of claim delayed where plaintiff relied on

assurances by doctors that complications were normal).

In Chamness v. United States, 835 F.2d 1350 (11th Cir.

1988), the Eleventh Circuit held that accrual of plaintiffs

claim was delayed where plaintiff claimed she relied on

incorrect medical advice.

- 25 -

The Second Circuit in essence aligns with these circuits in

expanding the discovery rule and eroding objective accrual

criteria. Without providing any legal justification for doing

so,’ the Second Circuit gives plaintiffs the benefit of many of

the excuses rejected by the First, Fourth, Sixth, Seventh and

Tenth Circuits. Specifically, the Second Circuit extends

accrual based on (a) the dispute among “experts” as to the

cause of the plaintiffs’ claimed injuries (Pet. App. A at 58a-

59a), (b) incorrect or competing medical advice from

government officials (Pet. App. A at 59a-61a), (c) plaintiffs’

assertion that they lacked definitive and conclusive proof that

the defendants’ conduct caused their injuries (Pet. App. A at

53a-62a), and (d) the hypothetical cost of seeking advice from

the medical or scientific community (Pet. App. A at 56a,

holding that the “‘reasonably should have known’ [standard]

[does not] extend to information that was obtainable only

through the private commissioning of expensive studies”).

The Second Circuit tolls accrual based on alleged

omissions by non-parties. “We cannot endorse the

proposition that, as a matter of law, when reports issued by

the responsible public officials stated that there was no

provable link between the cancers and the Landfill, members

of the public reasonably should have known to the contrary.”

Pet. App. A at 62a. The opinions of public officials has not

changed, yet plaintiffs had enough notice of their potential

cause of action to commence suit in 1995.

* The Second Circuit’s ten page accrual analysis is devoid

of legal citation other than to the summary judgment

standard and the FRCD itself. See Pet. App. A at 52a-62a.

* The Second Circuit excuses plaintiffs from accrual in 1991

absent a $2 million dollar epidemiology study, even though

plaintiffs commenced suit in 1995 without any new

information (much less a multi-million dollar study).

The notion that accrual is delayed until non-parties,

including the government, present plaintiffs with expert proof

of causation, also flies in the face of policy and precedent.

Plaintiffs may not “sit idly by and wait for...the federal

government [or other official agencies] to prove their claims.

They must do that themselves.” Carey v. Kerr-McGee Chem.

Corp., 999 F. Supp. 1109, 1116 (N.D. Ill. 1998). For this

additional reason the Second Circuit’s decision cannot be

reconciled with Kubrick and its progeny.’ There is no basis

for the Second Circuit’s ruling that action or inaction by a

non-party tolls accrual of a plaintiffs claim. This, in

essence, penalizes the defendants for acts or omissions of

non-parties. Again, the Second Circuit cites no authority for

this novel and expansive position.

C. Circuits That Embrace An Expansive Discovery Rule

Delay Accrual Indefinitely, In Essence Preventing

Summary Disposition Of Claims On Statute Of

Limitations Grounds.

The circuits, including the Second Circuit, that have

expanded the accrual rule have in effect established a new and

entirely different accrual standard. To hold that a question of

See, e.g., Kubrick, 444 U.S. at 124 (may not rely on

reassurances by Veterans Administration); Kronisch v.

United States, 150 F.3d 112, 121 (2d Cir. 1998) (Department

of Justice letters suggesting lack of claim did not toll

accrual); Gnazzo v. G.D. Searle & Co., 973 F.2d 136, 138

(2d Cir. 1992) (accrual is not delayed until expert opines on a

causal connection); Kansas Pub. Employees Retirement Sys.

v. Blackwell, 114 F.3d 679, 690-91 (8th Cir. 1997), cert.

denied, 522 U.S. 1068 (1998) (Attorney General’s report did

not toll accrual); Doe v. American National Red Cross, 923

F. Supp. 753, 760 n.11 (D. Md. 1996) (government

investigation did not toll accrual).

fact exists as to accrual in a “diligence-discovery” setting if

there is “some” information negating causation and absent an

expert opinion as to causation results in the exception

becoming the rule. Such an outcome-oriented approach

departs with well-established law and results in a strange

dichotomy. Causation will be hotly contested and the subject

of substantial debate in all but the rarest of cases. To suggest

that plaintiffs’ claims do not accrue until this debate is

resolved will postpone accrual indefinitely.

Indeed, the Second Circuit suggests that one must have

definitive proof of causation or at least have eliminated all

information questioning causation before a claim accrues as a

matter of law. See, e.g., the Second Circuit’s emphasis on

“knowledge” of “cause” (Pet. App. A at 54a — must have

“knowledge” or it is not sufficient as a matter of law to

establish “reasonably should have known.”).6 “Actual

knowledge” or proof of causation, however, is not required

for accrual in latent exposure cases. See, e. g., Fidler, 714

F.2d at 199 (once on notice of a potential claim, plaintiffs’

cause of action “is no longer inherently unknowable”);

Tolston, 102 F.3d at 866 (plaintiffs come close to “suggesting

that only actual knowledge of cause is enough to make the

claim ‘accrue’ — a proposition we squarely reject[]’’).

Information questioning causation is not now, nor has it ever

been, a rationale or excuse for postponing accrual.

A claim may accrue as a matter of law under the “knows

or reasonably should have known” standard if evidence exists

° In so holding, the Second Circuit departs from its prior

rulings on accrual. See, e.g., Kronisch, 150 F.3d at 121-22

(“[P]laintiff need not have compelling proof of the validity of

his claim in order for his claim to accrue — indeed, in cases

where plaintiff's claim is ultimately misconceived, such

proof will not exist ...”); see also Gnazzo, 973 F.2d at 138.

«3.

challenging causation. To hold otherwise, as the Second

Circuit has, creates the ironic situation that a plaintiff with a

meritorious claim, i.e., no information negating causation,

gets an earlier accrual date than a person with a meritless

claim. Surely this cannot be the law. See, e.g., Fidler, 714

F.2d at 200 (“The plaintiffs failure to marshal support

despite diligence may mean, however, that he has received

poor medical, scientific or legal advice. That result is

unfortunate but is also no reason why the statute should not

run.”).

Consideration of exculpatory factors in the accrual

analysis undermines the basic and well-established policies

and principles underlying the discovery rule in significant

respects. Under the FRCD, once a plaintiff is aware of the

injury and its potential cause, his claim accrues. If subjective

factors or excuses are a valid part of the accrual analysis,

statutes of limitations are rendered meaningless, any bright

line rule is erased, and parties are left to ad hoc justice. Such

an unwarranted expansion of the discovery rule should be

rejected and the proper standard (as articulated by the district

court) reinstated. By the end of 1991 (at the latest) sufficient

information was available such that plaintiffs reasonably

should have been on notice of a possible claim based on their

cancers. Pet. App. C at 178a. Plaintiffs’ actions commenced

in or after 1995 are time-barred.

D. Plaintiffs Who Fail Diligently To Inquire Should Not

Receive The Benefit Of An Expanded Discovery Rule.

The Second Circuit’s relaxation of the “diligent inquiry”

requirement further departs from well-established precedent.

Accrual is only postponed until plaintiff has or with

reasonable diligence should have discovered the critical facts

of both his injury and its cause. See Urie, 337 U.S. at 170;

Kubrick, 444 U.S. at 122-24. A plaintiff who remains

ignorant through lack of diligence cannot be characterized as

blameless and cannot rely on “blameless ignorance” as a

rationale for delaying accrual. Jd.

Plaintiffs admit they made no inquiry at all as to the

potential cause of their injuries and that they were not aware

of the information they now claim lulled them into delaying

suit. Thus, plaintiffs here should be estopped from raising

Mitigating factors such as availability of information

questioning causation. Cf Klehr, 521 U.S. at 194

(“‘reasonable diligence’ does matter and a plaintiff who is

not reasonably diligent may not assert ‘fraudulent

concealment’ to toll the statute of limitations”); accord

Grimmett v. Brown, 75 F.3d 506, 514 (9th Cir.), cert. denied,

518 U.S. 1003 (1996) (plaintiff must plead with particularity

the circumstances warranting tolling and state facts showing

his due diligence).

E. Certiorari Is Warranted Now Because: 1) Accrual

Plays A Pivotal Role In Latent Injury Claims And 2)

Disparate Application Of The Discovery Rule Will

Result In Further Erosion Of The Rule.

The Second Circuit decision has ramifications far beyond

the FRCD and the disposal of plaintiffs’ claims. The Statute of

limitations, one of the oldest and central features of American

common law, is a “meritorious defense, in itself serving a

public interest.” Kubrick, 444 U.S. at 117. Limitations

periods represent the state’s choice to provide repose for stale

claims, and the marking of accrual is essential to this

jurisprudence. Under any relevant standard, whether based on

the allegedly wrongful act, date of diagnosis of the injury, or

discovery of cause, courts recognize that the bright line

objective test is required. To indefinitely delay accrual, in

Some instances decades after death or diagnosis, leaves the

claims open to the vagaries of ever-changing science thus

thwarting the purpose of repose statutes. Wood v. Carpenter,

101 U.S. 135, 139 (1879) (delay is the “bane” of the search for

x os

truth and thus should not be encouraged or rewarded); Rotella,

528 U.S. at 559 (expansion of the discovery rule would “bar

repose, prove a godsend to stale claims, and doom any hope of -

certainty in identifying potential liability”).

The split among the circuits also results in considerable

disarray as to when a claim accrues under a diligent discovery

rule of accrual. Latent injury claims alleging environmental or

products exposure occupy an increasing share of civil

litigation. If different applications of the rule are permitted,

the same claim (factually) wili accrue at different times in

different circuits. This is precisely the situation that warrants

review by this Court.

Only this Court can resolve the problems created by the

Second Circuit decision and bring clarity to this important area

of the law.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,