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In re Ex Du Pont De Nemours and Co. C-8 Personal Injury Litigation

United States District Court, S.D. Ohio, Eastern Division

January 10, 2017

IN RE E.I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION
v.
E. I. du Pont de Nemours and Company, Case No. 2:15-cv-803 This document relates to: Larry Ogle Moody

          Elizabeth P. Deavers Magistrate Judge.

          DISPOSITIVE MOTIONS ORDER NO. 27 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT RELATED TO CANCERPHOBIA DAMAGES AND FEAR OF DEVELOPING OTHER PROBABLE LINK DISEASES

          EDMUND A. SARGUS, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on on Defendant's Motion for Summary Judgment on the Cancerphobia Portion of Negligence Damages and on Fear of Developing Other Probable Link Diseases (ECF No. 4788), Plaintiffs Memorandum in Opposition to Defendant's Motion (ECF No. 4816), and Defendant's Reply in Support of its Motion (ECF No. 4842). For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Defendant's Motion.

         I.

         Plaintiff Larry Ogle Moody's trial is scheduled to begin January 17, 2017, and is the second non-bellwether trial of the over 3500 cases filed against Defendant E. I. du Pont de Nemours and Company's ("DuPont") that make up this multidistrict litigation ("MDL"). The Judicial Panel on Multidistrict Litigation describes the cases in its Transfer Order as follows:

All the actions are personal injury or wrongful death actions arising out of plaintiffs' alleged ingestion of drinking water contaminated with a chemical, C-8 (also known as perfluorooctoanoic acid (PFOA) or ammonium perfluorooctanoate (APFO)), discharged from DuPont's Washington Works Plant near Parkersburg, West Virginia. All of the plaintiffs in this litigation allege that they suffer or suffered from one or more of six diseases identified as potentially linked to C-8 exposure by a study conducted as part of a 2005 settlement between DuPont and a class of approximately 80, 000 persons residing in six water districts allegedly contaminated by C-8 from the Washington Works Plant. See Leach v. E. I. Du Pont de Nemours & Co., No. O1-C-608 ( W.Va. Cir. Ct. [(Wood County Aug. 31, 2001)]).

(Transfer Order at 1, ECF No. 1.) DuPont utilized C-8 as a manufacturing aid in the production of Teflon™.

         The trials in this MDL began with two bellwether cases that commenced on September 2015 and May 2016, respectively. The first was chosen by DuPont; a kidney cancer case brought by Carla Marie Bartlett (Case No. 2:13-cv-170). The plaintiffs chose the second case, which was filed by David Freeman, who suffered from testicular cancer (Case No. 2:13-1103). Both of the bellwether cases resulted in verdicts in favor of the plaintiffs. On November 14, 2016, the first non-bellwether case was tried. That case was brought by Kenneth Vigneron, Sr. (Case No. 2:13-cv-136), and also resulted in a plaintiffs verdict.

         This Court has addressed all of DuPont's arguments regarding cancerphobia damages and fear of developing other probable link diseases in Dispositive Motions Order No. ("DMO") 20, which was a decision directed at DuPont's motion filed in Mr. Vigneron's case. (ECF No. 4809.) In DMO 20, the Court reviewed all of its prior decisions on this issue and granted DuPont's motion with regard to its request to exclude alleged mental anxiety damages related to fear of developing undiagnosed Probable Link diseases, and denied the remainder of the motion. In the parties' current briefing, the Court finds no reason to depart from its prior rulings with regard to Mr. Moody's fear of developing undiagnosed Probable Link Diseases, and therefore, GRANTS DuPont's Motion as it relates to that issue.

         The Court below addresses Mr. Moody's remaining allegations related to the fear of developing another cancer as the result of his testicular cancer and/or his fear of developing cancer and/or peripheral neuropathy as the result of his chemotherapy and radiographic imaging regimen.

         II.

         Summary judgment is appropriate "if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions" of the record which demonstrate "the absence of a genuine issue of material fact." Id. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)). "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [its] favor." Id. at 255 (citing Adickes v. S. H. Kress & Co.,398 U.S. 144, 158-59 (1970)). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,475 U.S. 574, 586 (1986) (the requirement that a dispute be "genuine" means that there must be more than "some metaphysical doubt as to the material facts"). Consequently, the central issue is '"whether the evidence presents a sufficient disagreement to require ...


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