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Millman v. United Technologies Corp.

United States District Court, N.D. Indiana, Fort Wayne Division

November 18, 2019

OPAL MILLMAN, ERIC POWELL, and LAURY POWELL on behalf of themselves and all others similarly situated, Plaintiffs,
v.
UNITED TECHNOLOGIES CORP., LEAR CORPORATIONS EEDS AND INTERIORS, as successor to United Technologies Automotive, Inc., ANDREWS DAIRY STORE, INC., L.D. WILLIAMS, INC., CP PRODUCT, LLC, as successor to Preferred Technical Group, Inc., and LDW DEVELOPMENT, LLC, Defendants.

          OPINION AND ORDER

          HOLLY A. BRADY JUDGE

         Andrews is a small town located in Huntington County, Indiana. Plaintiffs allege that Defendants owned and/or operated two businesses that contaminated essentially the entire town, including the soil, groundwater, and utility lines, with petroleum and volatile chlorinated compounds. Before the Court now is Plaintiffs' Motion for Class Certification (ECF No. 247) which asks the Court to “certify a class as to liability-only issues pursuant to Federal Rule of Civil Procedure 23.” (Id. at 1). For the reasons set forth below, the Court concludes that certification of Plaintiffs' proposed issues is not appropriate, and the Motion will be denied.

         I. Factual Background

         Plaintiffs Opal Millman, Eric Powell, and Laury Powell identify two sites that they allege are responsible for all the contamination in Andrews: the former United Technologies Automotive site (the “UTA Facility”) and the Andrews Dairy Store (the “Gas Station”). Both sites are in the center of town, and it is undisputed that both sites released contaminants into the environment. According to Plaintiffs, these releases have comingled and spread, subjecting nearly every resident of Andrews to toxic vapors through a process called vapor intrusion.

         The UTA Facility was operated by various entities, including Defendants United Technologies Corp. (“UTC”) and Lear Corporations Eeds and Interiors, as a manufacturing plant from 1961 to 2007. Workers at the UTA Facility used trichloroethylene (“TCE”), a powerful chlorinated solvent and known human carcinogen, to clean metal parts in two degreaser pits at the southern end of the property. TCE was not used in small amounts - in a filing with the Indiana Department of Environmental Management (“IDEM”) in 1993, UTA reported that it used as much as 14.5 tons of TCE per year.

         While the parties appear to disagree on scope and culpability, there is no dispute as to whether the use of TCE at the UTA Facility resulted in contamination. In 1993 or 1994, UTA entered into Indiana's Voluntary Remediation Program to address the presence of TCE and other volatile organic compounds (“VOCs”) found in the soil and groundwater both on- and off-site. UTC, as UTA's former corporate parent, continues UTA's remediation work to this day. UTA and UTC's remediation efforts include the installation of an air stripper on the town's municipal water supply, continued monitoring of the town's water supply, ongoing vapor testing and mitigation of structures within the town, and other environmental remedial actions.

         The Gas Station was previously owned by Defendant Andrews Dairy Store, Inc., but is currently operated by L.D. Williams, Inc., with the property owned by LDW Development, LLC. The Gas Station has operated since the 1960's, with an automobile repair business operating on the property in the 1970's. Four underground storage tanks were installed in 1979, with capacities ranging from 1, 000 gallons to 10, 000 gallons. The smallest tank was removed in 1998, but the other three tanks remain in operation.

         Again, the parties disagree on scope and culpability, but there is no dispute as to whether contamination occurred as a result of the operation of the Gas Station. In 1993 the Gas Station was entered into IDEM's Leaking Underground Storage Tank program. Since then, remediation efforts have been undertaken to address the release of petroleum products from the underground storage tanks. Those remediation efforts continue and, in 2018, L.D. Williams submitted a Corrective Action Plan to IDEM for remediation of the contamination around the Gas Station site.

         II. Opinions of Dr. Vasiliki Keramida

         Plaintiffs have retained Dr. Vasiliki Keramida as their expert in this case. Dr. Keramida has submitted two opinions. The first, submitted on July 12, 2017, opined that: (1) the UTA Facility and the Gas Station are the sole sources of the widespread chemical contamination now present in Andrews; (2) the Class Area - consisting of those properties impacted by the contamination- includes 243 properties, including 186 residences[1]; and (3) remediation is urgently required to eliminate these chemicals from the environment and to eliminate the attendant human health risks.

         After Dr. Keramida submitted her initial opinion, additional data was collected from groundwater, sewers, and several homes. Based on the new data, Dr. Keramida submitted a second affidavit on April 9, 2019 (ECF No. 249). Dr. Keramida now believed that her initial estimates were too conservative, and that contamination had traveled through utility and sewer lines to the far reaches of the town. Accordingly, Dr. Keramida now opined that the impacted area includes 661 properties, including 510 residences, 44 mobile homes, 22 commercial properties, and 85 unoccupied properties[2]. Dr. Keramida also opined that the town's drinking water supply remained contaminated despite remediation efforts, and that the only satisfactory course of action is for Defendants to remediate all remaining contamination both from their sites and from the impacted areas in the town.

         III. Proposed Class

         Plaintiffs propose the class be defined as follows:

All persons who have owned, rented, or resided at property within the Class Area at any time between 1983 and July 18, 2016.

         The Class Area is defined as the area impacted by the contamination, as set forth in Dr. Keramida's second affidavit.

         IV. Proposed Issues for Certification

         Plaintiff submit the following issues for certification of a liability-only issue class:

1) Each Defendant's role in creating the contamination emanating from the UTA Facility, including their historical operations, disposal practices, and chemical usage;
2) Each Defendant's role in creating the contamination emanating from the Gas Station, including their historical operations, disposal practices, chemical usage, and history of ...

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