ELR Citation: ELR 20460
No(s). 95-CV-0020A (W.D.N.Y. Oct 27, 1998)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) federally required commencement date (FRCD), which provides a uniform accrual date for toxic tort cases that preempts state statutes of limitations, applies to survival and wrongful death actions. The legal representatives of several decedents seek to recover damages from parties affiliated with a landfill for injuries or deaths from various cancers allegedly caused by decedents' exposure to hazardous and toxic substances from the landfill. The court first holds that most of the representatives' claims are time barred under the applicable state statutes of limitations. All of the survival actions are untimely under New York's traditional limitations period for personal injury torts, as more than three years have passed since the date of first exposure to the alleged toxic substances and the filing of the claims by decedents' representatives in 1995 and 1996. However, one survival action filed on June 17, 1996, is timely under New York Civil Practice Law and Rules (N. Y. Civ. Prac. L. & R.) §214-c(2), which provides that a plaintiff who suffers a personal injury in a toxic tort case has three years from the date of the discovery of the injury to commence an action, assuming that the decedent's discovery of his injury coincided with the diagnosis of his cancer in October 1993. In addition, §214-c(4) allows a representative that discovered the cause of a decedent's toxic tort injury within five years of discovering the injury to invoke a one-year period from the discovery of the cause within which to commence an action. Thus, the survival actions filed within one year of the discovery of the causes of such injuries are timely under §214-c(4), but the survival actions filed more than one year after the discovery of the alleged cause of death are time barred under §214-c(4) regardless of whether CERCLA §309 applies. Accordingly, the survival action filed on January 10, 1995, is timely under §214-c(4), assuming that the cause of injury was discovered in 1995. Further, the survival action filed on June 17, 1996, may also be timely under §214-c(4) depending on the precise date of the discovery of the cause of injury. As for the wrongful death actions, the decedents' representatives concede that all of the instant wrongful death actions are untimely under New York's applicable statute of limitations.

The court next holds that CERCLA §309's FRCD applies to state survival and wrongful death actions. The fact that the decedent did not personally discover the cause of his fatal injury prior to death does not preclude maintenance of a survival or wrongful death action by the representative of a decedent's estate. Furthermore, public policy supports the application of the FRCD to survival and wrongful death actions. The court then holds that summary judgment should be granted as to the survival actions filed later than December 19, 1995. To render N.Y. Civ. Prac. L. & R. §214-c(4) consistent with federal law, the FRCD's preemptive effect applies to §214-c(4) to nullify only the maximum five-year period within which the statute of limitations under §214-c(4) applies in a case. The FRCD's preemptive effect, however, does not displace the one-year period established by §214-c(4). Because the information was available on December 19, 1994, for all of the representatives to learn the cause of their decedents' injuries, December, 19, 1994, is the latest possible FRCD for any of these survival actions whose timeliness depends on the FRCD since they are otherwise time barred under New York law. The court then holds that all the instant wrongful death claims filed between January 10, 1995, and June 17, 1996, are timely if the correct FRCD is December 19, 1994. Preempting New York's two-year statute of limitations for wrongful death actions to the extent that it is inconsistent with the FRCD yields two years within which to timely file a wrongful death action measured from the asserted FRCD of December 19, 1994.

The court next holds that the enactment of the FRCD represents a proper exercise of Congress' Commerce Clause power. CERCLA broadly serves to remedy damage to the environment, and strengthening the capability of private persons to invoke state remedies for such resulting damage to persons and property caused by tortious conduct involving hazardous substances directly and substantially affects interstate commerce. Furthermore, the FRCD is an integral part of CERCLA's regulatory scheme because it preserves the legal remedies for state-law claims in support of one of CERCLA's express purposes, which would otherwise be time barred under the applicable state statute of limitations. And this result is not affected by the fact that such federal reliance on state law involves modifying common law or statutory definitions of when a particular type of tort action, based on existing state law, accrues and no more. The court further holds that the FRCD does not violate the Tenth Amendment. The FRCD does not mandate that the state regulate anything in accordance with a federal standard, but rather preempts state statute of limitations only to establish a uniform rule for the determination of the accrual date of state-law toxic tort claims, which are covered by the FRCD, where the state limitations periods would commence to run earlier than permitted by the FRCD.

The court then dismisses with leave to refile in accordance with N. Y. Civ. Prac. L. & R. §205(a) the survival and wrongful death actions brought on behalf of several decedents for whom no personal representative has yet been duly appointed. The court also holds that in accordance with New York law, no punitive damages may be recovered in any of the survival and wrongful death actions where the death of the decedent occurred before August 31, 1982, but punitive damages may be recovered in the actions where the death of the decedent occurred after August 31, 1982. Last, the court dismisses defendants' motion for summary judgment on the survivors' derivative loss of consortium claims with leave to refile after completion of discovery related to such claims. Although no loss of consortium claim may be maintained derivative of a wrongful death action, it is possible that discovery will reveal evidence sufficient to support a loss of consortium claim derivative of decedents' pain and suffering prior to death, which is permitted under New York law.

Counsel for Plaintiffs
Frederick M. Baron
Baron & Budd
3102 Oak Lawn Ave., Ste. 1100, Dallas TX 75219
(214) 521-3605

Counsel for Defendants
Laurie S. Bloom
Nixon, Hargrave, Devans & Doyle
1600 Main Pl. Tower, Buffalo NY 14202
(716) 853-8100