United States District Court, S.D. Ohio, Eastern Division
IN RE E. I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION,
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
A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE.
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
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.
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).
moves for this Court to apply the Ohio Tort Reform Act to the
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
"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).
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.
Application of the Ohio Tort Reform Act
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.
Exception for ...