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Federal Court Nixes Stigma Claims from “Cancer Cluster” Suit

Finding that Ohio law does not permit claims for environmental “stigma” damages, a federal district court in Ohio rejected those claims but allowed Plaintiffs’ primary claims to proceed in a case involving numerous alleged cancers due to exposure to hazardous substances.  The court rejected Defendant Whirlpool Corporation’s motion to dismiss as to the bulk of Plaintiffs’ claims, which seek damages for alleged personal injury and wrongful death based on allegations that Whirlpool dumped toxic waste that leached into groundwater and released harmful chemicals into the air. See Brown v. Whirlpool Corp., No. 3:13-CV-01092 (N.D. Ohio Feb. 10, 2014).   

Plaintiffs, 58 residents of Sandusky County, Ohio, asserted 17 claims against Whirlpool arising from their allegations that Whirlpool hauled daily shipments of sludge containing human carcinogens from its plant to various sites that migrated into their drinking water supply, blew into the air, and created a “cancer cluster” in the area. Id. at 1, 5. Plaintiffs fell into three groups: (1) those seeking redress for the deaths of their children, who were allegedly killed by various types of cancer from exposure to toxic substances dumped or emitted by Whirlpool; (2) those who themselves developed cancer, disabilities, and other diseases; and (3) those seeking compensation for lower property values as a result of Whirlpool’s alleged dumping. Id. at 8.

Defendants moved to dismiss Plaintiffs’ claims of wrongful death, negligence, and personal injury, arguing Plaintiffs had not adequately alleged that their exposure to hazardous substances from one of the identified sites had caused the alleged damages. Id. at 1, 12-15. The court disagreed, denying Whirlpool’s motion to dismiss the negligence and loss of consortium claims.  Id. at 19. The court concluded Plaintiffs had adequately pled their claims by identifying seven dumping grounds and specific time-frames within which Whirlpool’s dumping allegedly occurred, as well as including EPA’s soil and water testing results.  Id. at 15. However, the court granted the dismissal as to Plaintiffs’ claims relating to property values and stigma to their property, reasoning that Ohio law does not recognize actions for environmental stigma. Id. 19-20.