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In re E. I. du Pont de Nemours and Company C-8 Personal Injury Litigation

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

June 18, 2019

IN RE E. I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION,
v.
E. I. du Pont de Nemours and Company, et al., No. 218-cv-136 This document relates to: Angela and Teddy Swartz

          DISPOSITIVE MOTIONS ORDER NO. 31 APPLICATION OF TORT REFORM ACT TO SWARTZ CASE

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

         This matter is before the Court on Defendant's Motion to Apply the Ohio Tort Reform Act or, in the Alternative, for Certification to the Ohio Supreme Court (ECF No. 24), Plaintiffs' Memorandum in Opposition (ECF No. 30), and Defendant's Reply (ECF No. 31). For the reasons that follow, the Court DENIES Defendant's motion.

         I.

         Defendant E. I. du Pont de Nemours and Company's release of C-8 into the environment, the resulting Leach class action, and Leach Settlement Agreement are well-documented on this Court's docket. DuPont began releasing C-8 into the environment around the Washington Works plant in the 1950s and contaminated the water supply in several water districts in Ohio and West Virginia.

         Mrs. Swartz and her husband filed the first Post-Settlement Case scheduled for trial in this multidistrict litigation ("MDL"). Mrs. Swartz alleges that she is a member of the Leach class (i.e., for at least one year prior to December 4, 2004, she consumed drinking water containing .05 ppb or greater of C-8 attributable to releases from Washington Works), and that she suffered from kidney cancer, which is a Probable Link Disease, (i.e., for Mrs. Swartz it is more likely than not that there is a link between her exposure to C-8 and her kidney cancer).

         DuPont moves for this Court to apply the Ohio Tort Reform Act to the Swartz's claims.

         II.

         Courts apply the summary judgment standard in deciding motions on applicability of Tort Reform Act provisions. See, e.g., Williams v. Bausch & Lomb Co., 2010 U.S. Dist. LEXIS 62018 (S.D. Ohio June 22, 2010). 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 his 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 submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Hamad v. Woodcrest Condo. Ass 'n, 328 F.3d 224, 234-35 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).

         III.

         Defendant raises three issues related to the Ohio Tort Reform Act in its motion: (1) Application of the Ohio Tort Reform Act to the Swartz's claims, (2) Whether an Exception for Catastrophic Injury Applies, and (3) Certification of the Issues to the Ohio Supreme Court.

         A. Application of the Ohio Tort Reform Act

         DuPont asks this Court to apply to the Swartz's claims the damages caps set forth in the Ohio Tort Reform Act. This issue was just resolved in Dispositive Motions Order No. ("DMO") 30. For the same reasons stated in that DMO 30, the Court denies DuPont's request.

         B. Exception for ...


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