Ivory v International Bus. Machines Corp.

[*1] Ivory v International Bus. Machines Corp. 2012 NY Slip Op 52124(U) Decided on November 15, 2012 Supreme Court, Broome County Lebous, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 15, 2012
Supreme Court, Broome County

Thomas H. Ivory, THOMAS P. IVORY, TIMOTHY IVORY, SHAWN (IVORY) STEVENS, TAMI LYNN (IVORY) AZOURI, GRACE ODOM, EMMANUEL ODOM, and JAMES ODOM, Plaintiffs,

against

International Business Machines Corporation, Defendant.



2012-0768



APPEARANCES:

COUNSEL FOR PLAINTIFFS:FARACI LANGE, LLP

BY:STEPHEN G. SCHWARZ, ESQ., OF COUNSEL

28 EAST MAIN STREET

SUITE 1100

ROCHESTER, NY 14614

COUNSEL FOR DEFENDANT:JONES DAY

BY:NANCY MACKIMM, ESQ., OF COUNSEL

717 TEXAS, SUITE 3300

HOUSTON, TX 77002

Ferris D. Lebous, J.

Defendant International Business Machines Corporation ("IBM") moves for an order granting summary judgment pursuant to CPLR § 3212 in favor of IBM on plaintiffs' negligence [*2]claims.[FN1]

The court heard oral argument between July 9, 2012 and July 18, 2012 on eleven IBM motions. Today, the court has issued five separate Decisions resolving only those motions dealing with legal issues which are referred to, in sequence, as: (1) Negligence; (2) Nuisance; (3) Trespass; (4) Other Chemicals/Other Locations; and (5) Medical Monitoring. This Decision is the first in the sequence of decisions issued today. The court has reserved decision on the remaining motions addressing the testimony of various plaintiffs' experts until after the court holds Frye/Parker hearings thereon.

BACKGROUND

Trial plaintiffs are all former or current residents and/or owners of property within the Village of Endicott who seek damages caused by IBM's alleged negligent release of trichloroethylene ("TCE") and other chlorinated solvents into the environment from the former IBM facility in Endicott, New York (the "Endicott Facility"). More specifically, plaintiffs allege that IBM discharged TCE from the Endicott Facility into the environment by way of contaminated stack and fugitive emissions that drifted via ambient air into plaintiffs' homes and/or through vapor intrusion from TCE contaminated groundwater and subsurface soils beneath plaintiffs' homes.[FN2]

The court will not attempt to provide a full recitation of the factual background and competing allegations set forth in the voluminous motion papers, but will attempt to provide a brief and bulleted timeline to provide some context for the negligence discussion that follows.

It is undisputed that IBM used TCE at the Endicott Facility for at least 50 years, starting in the mid-1930s until it stopped using TCE in material quantities in its manufacturing operations in 1985. Plaintiffs seek to recover for exposures caused by TCE releases that allegedly occurred as early as the 1960s.

As an overview, in the 1960s IBM used a TCE handling and reclamation system at the Endicott Facility comprised of a hard-piped distribution system designed to collect and reuse TCE so as to minimize the amount of TCE waste requiring disposal. Up until the 1970s, the [*3]TCE collected by IBM was disposed of as sludge containing spent TCE into barrels which was then disposed of off-site by a vendor. During the mid-to-late 1960s, IBM also discharged wastewater streams from manufacturing lines containing TCE into the storm sewers (Delaney Aff., ¶ 20-27).

Despite IBM's efforts at reclamation and disposal, by 1965 plaintiffs allege that a so-called "solvent pool" already existed underground (which IBM does not dispute for purposes of this motion) although the same was not discovered until 1980. The solvent pool is alleged to have contained between 50,000 to 1 million gallons of virgin solvent of which 3,300 to 6,800 gallons were TCE.

In 1967, a 15,000 gallon above-ground TCE storage tank and dispensing system was installed near Building 41 at the Endicott Facility to store and deliver TCE to the hard-piped distribution system previously installed at the Facility (Delaney Aff., ¶ 13-14).

Although TCE was known to be a hazardous chemical since the mid-1960s, prior to the 1970s there were virtually no federal or New York state ambient air regulations that would have been applicable to IBM's TCE stack emissions (Washburn Aff, ¶ 47). In 1970, the US EPA and NYS DEC were formed and various environmental regulations relating to TCE were on the horizon but not yet enacted. With the formation of these environmental agencies and various regulations looming, IBM began an internal process of looking forward to complying with the expected environmental regulations. In August 1970, Delbert Flowers, an industrial hygienist with IBM, issued an internal memorandum reflecting IBM's efforts to assess and comply with impeding environmental ratings and requirements that were forthcoming but not yet in effect at the time. This memorandum is cited by both parties as the "Flowers Memo".

As anticipated in 1971, the DEC's air emission permit requirements became applicable to IBM and the TCE emissions attendant with the manufacturing processes at the Endicott Facility (Washburn Aff., ¶ 52).

In 1975, the National Cancer Institute ("NCI") issued the first public health alert that TCE caused cancer in male mice force-fed TCE through stomach intubation (IBM Ex 150). For purposes of this motion only, IBM accepts this as the first point in time that it knew or should have known that TCE had any potential carcinogenic effects in humans (IBM Memorandum of Law [Negligence], n 4).

In 1979, IBM hired an outside consultant, Dames & Moore to investigate groundwater quality at the Endicott Facility. Later in 1979, IBM discovered that an underground pipe carrying methylchloroform ("MCF") had leaked releasing approximately 4,100 gallons into the subsurface in an area behind Building 18. It was during the Dames & Moore investigation and remediation of the MCF spill that the existence of the solvent pool was discovered. The composition of the subsurface in this location is comprised of an upper aquifer, a middle clay barrier, and a lower aquifer and the solvent pool was discovered sitting on the middle clay layer. The solvent pool [*4]was identified as containing pure or virgin chemicals with one volume estimate ranging between 50,000 gallons to 1 million gallons (Pl Ex 37 [IBM Bates 0856509]) out of which approximately 3,300 to 6,800 gallons were TCE (Watson Aff., ¶ 7).

In 1981, the 15,000 gallon above-ground TCE storage tank (originally installed in 1967) was removed from the Endicott Facility.

In 1982, the DEC adopted the first air guideline for TCE which established an ambient air level of 900 æg/m3 (micrograms per cubic meter).

In 1983, the DEC imposed limits on IBM's discharge of wastewater containing trace amounts of TCE into storm sewers (Delaney Aff., ¶ 22).

In 1985, IBM stopped using TCE in material quantities in manufacturing.[FN3]

In 1990, the EPA classified TCE as a "hazardous air pollutant" and implemented regulations requiring monitoring of fugitive emissions (Washburn Aff., ¶ 51).

As of 1990, for purposes of this motion only, it is assumed that IBM had knowledge about the potential for vapor intrusion to impact homes in the surrounding community (IBM Memorandum of Law [Negligence], n 2). The court notes, however, that plaintiffs allege that IBM should have known about vapor intrusion even earlier in the mid-to-late 1980s. Plaintiffs' allegations are based upon IBM's actual knowledge of TCE laden exhaust being present in Building 18 even though TCE was not being used in any manufacturing processes performed in that building. Plaintiffs allege that this so-called cross-contamination from manufacturing process emissions elsewhere put IBM on notice of not just the potential for but rather the reality of vapor intrusion (Schwartz Aff., ¶ 55).

In 2002, IBM sold the Endicott Facility.

By 2002-2003, IBM had completed its initial vapor intrusion investigation in the Village of Endicott as led by Sanborn Head Associates. In 2003, after consultation with the DEC and DOH, IBM installed ventilation systems in various homes including the residences of plaintiffs Ivory and Odom.

In 2004, IBM offered property owners receiving a ventilation system the greater of $10,000 or 8% of the assessed value of the property (up to a maximum of $50,000) in exchange for a General Release. Of the trial plaintiffs, only Thomas H. Ivory accepted the $10,000 and [*5]signed a General Release which is the subject of separate motions involving nuisance and trespass.

In 2004, the DOH established a guideline for TCE in residential indoor air of 5 ug/m3.

In September 2011, the EPA first categorized TCE as "carcinogenic in humans" (Whysner Aff. ¶ 14).

DISCUSSION

A.NEGLIGENCE/SUMMARY JUDGMENT

It is well-settled that to establish a cause of action sounding in negligence, a plaintiff must establish: (1) the existence of a duty to exercise reasonable care owed by defendant; (2) a breach of that duty; and (3) resulting injury to the plaintiff (Hidden Meadows Dev. Co. v Parmelee's Forest Products, Inc., 289 AD2d 642, 643 [3rd Dept 2001]).

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by producing evidentiary proof that demonstrates the absence of any material issue of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If the moving party meets said burden, then the burden shifts to the opposing party to present evidentiary proof in admissible form that demonstrates the existence of a factual issue (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).

B.DUTY & BREACH OF DUTY/STANDARD OF CARE

The threshold question presented for resolution is IBM's argument that it has demonstrated as a matter of law that its use, storage, handling, recycling and disposal practices of TCE at the Endicott Facility were reasonable and consistent with applicable industry standards of care. As this issue is framed by IBM, it argues that the standard of care owed these plaintiffs and the scope of its duty, as well as the reasonableness of its conduct and foreseeability of the risk to plaintiffs must be judged by the industry standards in effect at the time of the conduct in issue occurred. As such, IBM asserts that its duty and standard of care was set by industrial and regulatory standards coupled with evolving knowledge of the potential harmful effects of TCE over time; IBM's actual conduct; as well as historical treatment and custom.

IBM has submitted the affidavits of B. Tod Delaney, PhD, John Whysner, MD, and Stephen T. Washburn to meet its affirmative burden on this motion to establish that IBM's use, handling, storage, recycling, and disposal of TCE were reasonable and consistent with applicable governmental and industry standards of care. These experts aver, among other things, that there is no evidence of any significant TCE spill or leak into the ground at the Endicott Facility (Delaney Aff., ¶ 15-18). Further, these submissions establish that IBM's disposal of TCE contaminated wastewater into municipal sewers until 1984 was done with the approval of state and local agencies including the express permission of the Village of Endicott to discharge TCE contaminated rinse water into the sanitary sewers in 1969 (Delaney Aff., ¶ 22; IBM Ex 203). [*6]

Moreover, with respect to air emissions, IBM's experts explain that there were virtually no regulations of air emissions (stack emissions) prior to 1970 and that it was not until 1982 that the ambient air level of 900 æg/m3 was implemented. Thus, IBM argues that the TCE ambient air concentrations in 1966 at the Ivory and Odom homes (that were estimated by plaintiffs' experts at 268 æg/m3 and 430 æg/m3), cannot be said to have violated any regulation regarding emissions of TCE as they were well below the 1982 guideline level of 900 æg/m3 imposed years later.

IBM's experts also address the issue of fugitive TCE emissions which relate to emissions that escape from sources other than industrial smoke stacks such as storage tanks, piping valves, and flanges. IBM had an above-ground TCE storage tank that was installed in 1967 and removed by 1980. The first governmental agency regulation for fugitive emissions that would have applied to such a tank was not implemented until 1990. Thus, at the very least, IBM argues its conduct regarding fugitive emissions must be deemed reasonable as a matter of law prior to 1990 since its above-ground storage tank was removed a full ten years prior to any federal regulatory standards.

The court finds that IBM has satisfied its prima facie burden on this portion of the motion

by establishing through the affidavits of Dr. Delaney, Dr. Whysner and Mr. Washburn that IBM's use, storage, handling, recycling and disposal practices of TCE at the Endicott Facility were reasonable and consistent with applicable governmental and industry standards of care. However, before addressing plaintiffs' specific arguments in opposition, the court will first address IBM's argument that plaintiffs' failure to come forward with expert testimony regarding the standard of care is fatal to their opposition because a jury is not able to assess the standard of care in a case such as this that revolves around complex scientific questions as presented here.

It is well-settled that matters of "[a]dmissibility and bounds of expert testimony are addressed primarily to the sound discretion of the trial court..." (People v Cronin, 60 NY2d 430, 433 [1983]). Plaintiffs argue that they have submitted expert affidavits on their cause in fact claims and that no separate expert on standard of care owed to plaintiffs is required. In short, the court agrees with plaintiffs' opposition argument that their "[c]ause in fact claims...are supported by expert submissions, and nothing in [the cases cited by IBM] supports IBM's contention that a state-of-the-art expert is necessary. There is ample evidence in the present cases - documents and testimony - to establish the totality of circumstances involved. Plaintiffs are not required to produce, and the jury does not need, expert testimony on the state-of-the-art" (Plaintiffs' Memorandum of Law [Negligence], p 12). To the extent that IBM cites cases in support of its argument, the court finds those cases are distinguishable because the moving party in those cases appears to have proffered expert testimony on the issue of causation in addition to standard of care (Holy Name of Jesus R. C. Church v New York City Tr. Auth., 28 AD3d 520 [2nd Dept 2006]; Lopez v Insurance Co. of N. Am., 289 AD2d 205 [2nd Dept 2001]).

While this court is mindful that the jury will be faced with scientific concepts involved in assessing the proper standard of care that is not to say that those concepts are beyond the ken of [*7]the average juror and rise to the level of requiring expert proof. In fact, the court finds that IBM's presentation during oral argument on this motion to have been a helpful indicator of how these issues can be presented in a straightforward manner and capable of being understood by a lay person particularly in relation to the timeline of regulatory events on which IBM so strongly relies. In view of the foregoing, the court has exercised its discretion and finds that a jury is capable of determining the applicable standard of care and deciding if, and to what degree, said standard changed over time to keep pace with evolving science and whether or not IBM's conduct in light of the same fell below any standard of care and duty owed these plaintiffs.

Turning now to plaintiffs' opposition on the merits, the burden has shifted to plaintiffs to present evidentiary proof in admissible form that demonstrates the existence of a factual issue regarding the reasonableness of IBM's conduct and foreseeability of the risk (Zuckerman, 49 NY2d 557; Perkins v AAA Cleaning, 30 AD3d 790, 792 [3rd Dept 2006]). Generally, plaintiffs argue that all issues regarding reasonableness and foreseeability are questions of fact that must be determined by a jury. More specifically, however, plaintiffs rely upon numerous documents obtained during discovery which they claim raise questions of material fact regarding whether IBM's use, storage, handling, recycling and disposal practices of TCE at the Endicott Facility were reasonable.

1.Air contamination

With respect to air emissions, plaintiffs argue that IBM documents show excess air emissions from all point sources including the Flowers Memo, the Chadwick study, as well as two studies conducted by Betz Environmental Engineers in 1970 and 1974 (Pl Exs. 18, 19, 20 & 21). The parties focus on the so-called Flowers Memo. The Flowers Memo is dated August 14, 1970 and was written by Delbert Flowers, an industrial hygienist with IBM, and is entitled "Excessive Chlorinated Solvent Air Emissions" with a subheading called "Survey Data of Problem Areas (Endicott)" (Pl Ex 18). Mr. Flowers sets forth the following under "conclusions":

[t]his survey is incomplete in that several suspected high sources remain to be evaluated. However, results of a sufficient number of them indicate immediate action should be initiated. A rough estimate seems to be that approximately 2000 pounds/hr of chlorinated solvents are being exhausted to the atmosphere. As we discussed, the above systems are in excess of the State and IBM criteria.

(Pl Ex 18, p 2 [emphases added]).

IBM argues that the Flowers Memo should be viewed from the context of a corporation looking forward to compliance with regulations that were anticipated but not yet enacted. In other words, IBM stresses that Mr. Flowers' conclusions that "immediate action should be initiated" and "the above systems are in excess of the State and IBM criteria" did not mean that IBM was violating any regulations at that time, only that Mr. Flowers was alerting his employer that it would not be in compliance with the regulations that were anticipated to be enacted. Contrary to IBM's interpretation of the Flowers Memo, plaintiffs contend that this is one example of proof of IBM's awareness of the harmfulness of TCE even if industry standards or agency [*8]regulations were not yet directly applicable.

Although the court agrees with IBM that the Flowers Memo, in and of itself, does not admit or establish a violation of law, the court disagrees with IBM's conclusion that "it does not show anything unreasonable" (IBM Memorandum of Law [Negligence], p 20). In this court's view, this is simply not a conclusion to be drawn as a matter of law by the court, but rather is for the trier of fact to determine. At the very least, this court finds that the Flowers Memo raises questions of material fact regarding IBM's knowledge of the harmful effects of TCE and IBM's conduct relating to its use, storage, handling, recycling and disposal practices of TCE regardless of industry standards and regulations in effect at the time.

Plaintiffs also argue that IBM did not comply with good engineering practice relative to stack heights and the venting of TCE into the ambient air. Plaintiffs allege that IBM transitioned in the late 1970s from vents extending only a few feet from roof level to a combination stack on top of Building 18 (Pl Ex 26). Further, plaintiffs allege that IBM recognized as early as 1980 in a document by Dominic Casale, an IBM environmental engineer, that the stack heights were lower than the EPA recommended (Pl Ex 27). Plaintiffs argue that IBM's failure to respond to this internal warning is memorialized in a report - issued eleven years later in 1991 - by IBM consultant ENSR Consulting & Engineering stating that "the point source stacks are less than GEP height" (Pl Ex 28).[FN4] IBM responds that its expert, Mr. Washburn, has opined that this allegation, even if true, is not evidence of negligence because prior to the early 1970s there were virtually no agency regulations that would have applied to IBM's emissions of TCE into the ambient air (Washburn Aff., ¶ ¶ 46-47, 60). Again, in this court's view, this is simply not a conclusion to be drawn as a matter of law, but rather for the trier of fact to determine. As such, at the least, this court finds that the ENSR report raises questions of material fact regarding IBM's knowledge of the harmful effects of TCE and IBM's conduct relating to the use, storage, handling, recycling and disposal of TCE.

2.Groundwater contamination

With respect to groundwater contamination, plaintiffs rely in part on the 1979 report from IBM retained consultant Dames & Moore which was hired to investigate groundwater contamination (Pl Ex 33). Plaintiffs allege that the Dames & Moore report demonstrates IBM's knowledge that it had a serious problem with groundwater contamination due to storage and handling practices, namely by reporting that "IBM Management, being previously aware of potential contamination of the ground water due to spills and/or leaks in storage areas, had designed an ambitious plan which was implemented in approximately the Summer of 1979" (Pl Ex 33, IBM 1775180 [emphasis added]). Plaintiffs target this reference of a reported "ambitious plan" and question whether any such ambitious plan was ever implemented. IBM strenuously objects to any such inference (MacKimm Reply, ¶ 38). Additionally, plaintiffs argue the Endicott Facility was lagging behind other IBM plants in the sophistication of "secondary containment" (a second layer of protection for groundwater in case a pipe or tank leaks) to [*9]prevent groundwater contamination (Pl Exs 43 & 44). The court finds that the interpretation of the Dames & Moore report, as well as the more sophisticated containment upgrades of other IBM facilities versus the Endicott Facility, and what knowledge should be imputed to IBM, if any, from the same clearly present factual arguments best resolved by the trier of fact.

Furthermore, plaintiffs' strenuously argue that the existence of the previously mentioned solvent pool is further proof that questions of material fact exist regarding whether IBM's use, storage, handling, recycling and disposal of TCE at the Endicott Facility were reasonable and consistent with applicable standards of care. Plaintiffs assert that there was evidence that IBM noticed that solvent was missing from its inventory when an internal memo in 1980 stated that "we will not be able to account for all our chemicals" (Pl Ex 27). In other words, plaintiffs argue the existence of this solvent pool means that prior to its discovery in 1980, IBM was losing up to hundreds of thousands of gallons of pure or virgin chemicals including TCE of which it was either ignorant or simply ignored altogether - either of which raises questions of fact regarding the reasonableness of IBM's action or inaction in response thereto and whether the same breached the standard of care owed to the plaintiffs.

On this record, the existence of the solvent pool is undisputed. At this juncture, the only reference in the record to the volume of solvents in the solvent pool is an estimate of from 50,000 gallons to over 1 million gallons of pure solvent, containing 3,300-6,800 gallons of TCE (Pl Ex 37, p 23; Watson Aff., ¶ 7). The court finds the plaintiffs' arguments regarding the existence of the solvent pool to be compelling. However, a motion for summary judgment is not the forum for this court to determine the size of the pool; whether it contained pure solvent; or what, if any, conclusions may be drawn from its existence that may equate to proof of negligent practices by IBM in the use, storage, handling, recycling and disposal of TCE at the Endicott Facility. Rather, factual resolution of these issues must be resolved by the jury.

3.Vapor intrusion

With respect to vapor intrusion, plaintiffs argue that as early as the mid to late 1980s, IBM was experiencing TCE laced vapor intrusion inside its own facilities and thus was aware of the concept of and potential for vapor intrusion well before 1990. In support of this contention, plaintiffs cite the deposition testimony of Mr. Ksenak regarding the issue of cross-contamination in Building 18 (Pl Ex 24 [Ksenak EBT], pp 377-378), as well as the installation of test wells by Vapex in 1989 (Pl Ex 50). Based upon this evidence, plaintiffs assert they have raised material questions of fact sufficient to defeat IBM's assertion that any pre-1990 vapor intrusion based negligence claim should be dismissed. The court finds that plaintiffs have raised material questions of fact as to when IBM knew or should have known about the potential for TCE vapor intrusion even before 1990.

On the issue of IBM's compliance with various industry standards, plaintiffs contend that even if IBM continuously complied with industry standards as amended during this time period, such compliance even if true, does not, in and of itself, equate to reasonableness of IBM's conduct during this timeline as a matter of law. The court agrees. The Court of Appeals has [*10]stated that "[t]he jury must be satisfied with [a common practice or usage's] reasonableness, just as the jury must be satisfied with the reasonableness of the behavior which adhered to the custom or the unreasonableness of that which did not [citation omitted]" (Trimarco v Klein, 56 NY2d 98, 106-107 [1982]). In fact, New York courts apply this standard across the board in negligence actions when charging, pursuant to the Pattern Jury Instructions, as follows: "[a] general custom or practice is not the only test; what you must decide is whether, taking all the facts and circumstances into account, defendant has acted with reasonable care" (PJI 2:16). Thus, the court agrees, that IBM's proof of compliance with prior versions of industry standards - even if true - does not, in and of itself, take the question of the reasonableness of IBM's conduct out of the hands of the jury.

Finally, IBM's arguments as to foreseeability warrant discussion. IBM argues that the scope of its duty is narrowed by the evolving scientific knowledge of the carcinogenic effects of TCE, as well as vapor intrusion, over the past 50 years. IBM asserts that case law dictates that the duty of care is defined by the foreseeability of the particular risk at issue at the moment of the alleged breach (Perkins, 30 AD3d 790 [respiratory distress from exposure to cleaning solution vapors was unforeseeable when only known health effects were dizziness, headaches, or unconsciousness]; Reynolds v Atlantis Mar. World, LLC, 29 AD3d 770 [2nd Dept 2006] [risk of infection from sting ray touch was not foreseeable]; Danielenko v Kinney Rent A Car, 57 NY2d 198 [1982] [risk that bomb might be planted was not foreseeable from unattended rental vehicle in parking garage]). Based on this case law, IBM argues that it could not have reasonably foreseen plaintiffs' injuries prior to 1975 (the year the National Cancer Institute issued an alert that TCE had potential carcinogenic effects in mice) and could not have known about vapor intrusion prior to 1990. While IBM acknowledges awareness that a worker directly dealing with TCE was exposed to danger, it argues that such knowledge is not comparable to awareness that a neighbor in their own home a mile away from the Endicott Facility was subject to risk resulting from groundwater contamination and air emissions.

In opposition, plaintiffs contend that the precise manner in which the harm occurred need not be foreseeable as long as the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent (Sanchez v State of New York, 99 NY2d 247, 252 [2002]). In any event, plaintiffs urge that the question of foreseeability is a question to be resolved by the jury (Rivera v New York City Tr. Auth., 77 NY2d 322, 329 [1991]). More specifically, plaintiffs assert that IBM did not need to know that TCE was carcinogenic in 1960 or 1970, but it is sufficient that IBM had actual knowledge of TCE as a dangerous and toxic chemical by the mid- 1960s separate and apart from its carcinogenic effects. For instance, plaintiffs cite numerous IBM internal worker safety guidelines describing TCE as toxic and listing health warnings to employees handling the chemical. Plaintiffs also point to the mid-1980s when IBM became aware it was experiencing vapor intrusion inside its own facility (Pl Ex 24); the lag until 2003 before IBM began testing nearby homes for such vapor intrusion; and the Dames & Moore report that IBM was aware in 1979 that TCE was moving through groundwater (Flowers Memo; Ex 51) as further proof of questions of material fact relative to foreseeability. [*11]

In this court's view, the issue of foreseeability in this case is best understood in the context of the Court of Appeals determination that foreseeability is not only what is actually known, but also includes what a defendant reasonably should have known based upon the totality of the circumstances (Sanchez, 99 NY2d at 254). The court finds there are numerous factual disputes as to the meaning of various internal IBM memorandum and whether such factual disputes demonstrate that IBM knew or should have known of the risks presented by TCE all of which must be left for resolution by the trier of fact. Quite simply, there are too many factual determinations involved in assessing what IBM knew or should have known, and when IBM knew or should have known it, to warrant summary judgment on the issue of foreseeability.

In summary, the court has reviewed all the supporting affirmations, affidavits, and underlying documents. Suffice it to say that the court finds that a majority of the documents are subject to varying interpretations and, as such, raise material questions of fact on the various issues presented. IBM would have this court take each and every document and/or event, be it the Flowers Memo or the Dames & Moore report or the existence of the solvent pool, and view it as a snapshot or a moment in time without regard to the larger picture. On the other hand, plaintiffs argue that each document and/or event must be viewed in the context of IBM's continuing course of conduct and growing knowledge spanning 40 years. In other words, plaintiffs assert that IBM had access to sufficient information over the years regarding the dangers of TCE and simply failed to connect the dots. The court finds that each document and/or event cannot be viewed in isolation as IBM proposes, but rather believes that a jury may choose to assess these documents and/or events not only separately, but cumulatively in order to assess IBM's continuing conduct and knowledge - actual or constructive - in determining whether IBM's use, storage, handling, recycling and disposal of TCE at the Endicott Facility was reasonable under the totality of the circumstances.

Accordingly, the court finds that plaintiffs have presented evidentiary proof in admissible form demonstrating the existence of material questions of fact regarding the reasonableness of IBM's conduct and foreseeability of the risk resulting from that conduct relating to its use, storage, handling, recycling and disposal practices of TCE at the Endicott Facility (Rivera, 77 NY2d at 329). Stated another way, the court finds that what IBM knew and should have known during the relevant time periods; and when it knew or should have known; and what, if anything, it did in response to that knowledge; and whether a reasonable person would have responded differently are all factual determinations that must be left for resolution by a jury at trial.

However, this determination does not end the court's inquiry into IBM's motion for an order granting summary judgment pursuant to CPLR § 3212 in favor of IBM on plaintiffs' negligence claims because the foregoing addresses only the first two elements of negligence, namely duty and a breach of duty. The court will now turn to the third element of injury.

[*12]C.INJURY: INCREASED RISK [FN5]

The third and final element necessary to establish a valid negligence cause of action is an injury. The focus here is on the so-called asymptomatic plaintiffs.[FN6] IBM contends that the asymptomatic plaintiffs' assertion of an increased risk of disease does not state a compensable injury in tort as a matter of law.

Before analyzing the legal issue presented, the threshold question that must be answered is just what injury is alleged by the asymptomatic plaintiffs? The court will quote plaintiffs' counsel:

IBM devotes a significant portion of the instant negligence motion to disputing Plaintiffs' 'Increased risk of disease' causes of action. According to IBM, because such a cause of action is not cognizable in tort, on that basis alone, none of the Plaintiffs, save for Thomas H. Ivory and Timothy Ivory, who are current cancer sufferers, can state a cause of action in negligence. In so arguing, IBM misconstrues these Plaintiffs' cause of action. These Plaintiffs have not asserted a cause of action merely for a fear of disease. Rather, they assert that the TCE exposure they have suffered as a direct result of IBM's negligence has subjected them to a risk of disease that requires medical monitoring to detect and control.

(Plaintiffs' Memorandum of Law [Negligence], p 7 [emphasis added]).

Then, during oral argument on a related motion, the court asked plaintiffs' counsel to identify the injury suffered by the asymptomatic plaintiffs. Plaintiffs' counsel's response was as follows:

[t]he injury is a toxic exposure to a known carcinogenic chemical at levels that are sufficient to cause cancer. And I think that the idea that someone that has - - in other words, we're not talking about a genotoxic injury. We're talking about a genotoxic chemical.

***[*13]

And, so, the issue, really, is not whether there is damage to chromosomes caused by TCE. That is a known fact. The issue is whether that damage, that injury to the chromosomes is going to grow into a cancer; and that's something that no one can predict with any level of certainty.

(Transcript, Medical Monitoring Motion, pp 85-86 [emphasis added]).

Based on this record, the court finds there is simply no medical proof that the asymptomatic plaintiffs have TCE in their bodies, have any disease or physical manifestations or symptoms of diseases due to TCE exposure, nor any cellular changes or physical impact from the alleged TCE exposures.[FN7] Plaintiffs' counsel attempts to steer the injury discussion for the asymptomatic plaintiffs away from the phrase "increased risk of disease" to "toxic exposure" or "genotoxic chemical" is unavailing. The court finds that the only plausible description of the injury alleged by the asymptomatic plaintiffs is indeed as an increased risk of disease as they currently suffer from no current actual physical injury.

Thus, the next question is whether or not an increased risk of disease may in and of itself support a tort action in New York. The answer is simply no. There is no doubt but that New York law requires an injury to sustain a tort cause of action, rather than the possibility of some future injury (Bossio v Fiorillo, 210 AD2d 836, 838 [3rd Dept 1994] ["cannot recover damages for the enhanced risk of cancer and the threat of future harm not yet realized"]).

That said, even if New York did recognize an increased risk of disease as sufficient to sustain a negligence action, IBM further contends that plaintiffs' asserted risk levels are too low to be actionable with the highest quantified increased risk of cancer identified as merely a .00607% increase for Timothy Ivory. For purposes of discussion, the court, as did IBM, has accepted plaintiffs' own experts' testimony that the increased risk of disease in the asymptomatic plaintiffs is, at worst, an increase of 6 thousandths of one percent (or .00607%). Plaintiffs' expert, William R. Sawyer, PhD., has identified the increased risk for the asymptomatic plaintiffs' as follows (IBM Ex 18, Ex C thereto):

Trial PlaintiffIncreased Risk

Thomas P. Ivory.00533%

Timothy Ivory (other diseases).00607%

Shawn (Ivory) Stevens.00573%

Tami Lynn (Ivory) Azouri.00263%

Grace Odom.00595%

James Odom.00319%

Given that a person's risk of developing cancer over a lifetime is on average about 40% (44.85% for males and 38.08% for females), plaintiffs' own proof establishes an increased risk of disease, at worst, in Timothy Ivory's projection from 44.85% to 44.85607% (IBM Ex 144; Herzstein Affidavit, p 16, ¶ 31; Whysner Aff., p 15, ¶ 32).

Although there is no New York case delineating an acceptable percentage, case law in situations involving fear of diseases actions - not at issue here but relevant for comparative purposes - makes clear that the increased risk to maintain a fear of disease action must meet a reasonably certain standard approaching, if not exceeding 50% (Fusaro v Porter-Hayden Co., 145 Misc 2d 911, 917 [1989], affd 170 AD2d 239 [1st Dept 1991][greater than 50%]; Sterling v Velsicol Chemical Corp., 855 F.2d 1188, 1204 [6th Cir 1988] [25-30% increased risk insufficient]). Here, an increased risk of .00607% fails to even approach such levels.

Plaintiffs' attempt to rebut IBM's injury argument by recasting the .00607% used by Dr. Sawyer to categories - low, medium, high - of estimated excess cancer risk used by the New York State Department of Health (NYSDOH), EPA and ATSDR. According to plaintiffs' counsel, "[t]he result of these calculations is an estimate of the risk above that of the general population for developing cancer. Increased risks of cancer are then further subdivided between low increased risks, moderate increased risks and high increased risks. However, any increased risk within any of these categories is viewed to be of concern" (Plaintiffs Memorandum of Law [Medical Monitoring], pp 24 [emphases in original]). As further explained by plaintiffs' expert, Dr. Sawyer:

[a]n increased lifetime cancer risk of one in one million (1.0 x 10-6) or less is generally considered an insignificant increase in cancer risk. Cancer risks levels above 1.0 x 10-6 and less than 1.0 x 10-4 are considered 'low', but nonetheless cause concern. Cancer risks above 1.0 x 10-4 are defined as 'moderate' risk...All of the plaintiffs show increased risk of cancer in the 'low' to 'moderate' increased risk level regardless of which data is used...Even an increased risk of 'low' is of concern. None of the plaintiffs evaluated using either set of data fell into the 'equal to or less than 1 x 10-6,' the risk level at which there is general consensus among the scientific and regulatory communities of an 'acceptable' excess risk....

(Sawyer Aff, ¶ 43 [internal citations omitted]).

The court finds plaintiffs' attempt to call an increased risk of disease of .00607% by another name - be it a low or moderate increased risk - does not change the mathematical reality of the proof submitted. The simple reality is that .00607% does not under any circumstance rise to the level of reasonable certainty, namely 50% or greater. The court finds that, even if an increased risk of disease were sufficient to sustain a negligence action, an increased risk of disease of .00607% in the asymptomatic plaintiffs is insufficient to qualify or quantify as an [*14]increased risk actionable as a matter of law.[FN8]

Consequently, IBM's motion for summary judgment dismissing the negligence claims of the asymptomatic plaintiffs (Thomas P. Ivory, Shawn Ivory Stevens, Tami Lynn Ivory Azouri, Grace Odom, and James Odom), as well as the negligence claim of plaintiff Timothy Ivory to the extent that he alleges a negligence cause of action for increased risk as to diseases other than the kidney cancer from which is currently suffers, is granted.

D.RES IPSA LOQUITOR

With respect to the remaining negligence claims of Thomas H. Ivory (non-Hodgkin's lymphoma) and Timothy Ivory (kidney cancer), plaintiffs raise the argument that they will be entitled at trial to rely on the doctrine of res ipsa loquitur in relation to the existence of an underground solvent pool and the amount of air emissions. IBM argues that the doctrine is inapplicable because there are non-negligent explanations for the existence of the solvent pool and amount of air emissions and because IBM did not have exclusive control over portions of the property or all of the TCE on its property during the relevant time periods.

Res ipsa loquitur is an evidentiary rule that permits an inference of negligence solely because of the happening of an unusual or extraordinary occurrence (Dermatossian v New York City Tr. Auth., 67 NY2d 219 [1986]). To establish a claim under this doctrine plaintiffs must establish that: (1) the event was a kind that ordinarily does not occur in the absence of someone's negligence; (2) the event must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the event must not have been due to any voluntary action or contribution on the part of the plaintiff (DeCarlo v Eden Park Health Svs., Inc. 66 AD3d 1211, 1212 [3rd Dept 2009]). The doctrine has been applied in a case involving alleged negligent handling of chemicals (McKenna v Allied Chem. & Dye Corp., 8 AD2d 463 [4th Dept 1959]).

During oral argument, the parties focused on the "exclusive control" element with plaintiffs arguing that it is IBM's exclusive control of the chemicals that is at issue, while IBM argued it is the exclusive control of the property that is at issue.

Assuming it is exclusive control of the chemicals that is at issue, plaintiffs assert that IBM cannot argue it complied with the applicable standards of care yet still lost up to a million gallons of pure solvent as established by the existence of the solvent pool absent some degree of negligence or carelessness on its part. IBM argues there are non-negligent explanations for the existence of TCE in the solvent pool. For instance, IBM argues that it was permissible to dispose of TCE in the ground prior to the 1960s (although denying that it did so) and prior owners may [*15]well have done so. IBM also argues that there is proof in the record that the prior owner of the property, Endicott Johnson, purchased a total of 22,000 gallons of TCE from 1957 to 1961.

Assuming it is exclusive control of the property that is at issue, IBM asserts that plaintiffs cannot satisfy their burden that IBM had exclusive control over the property near the solvent pool. IBM points to possible leaks during the unloading process by truck drivers employed by third-party vendors who delivered solvents to the IBM property over the solvent pool and that portions of the property over the solvent pool were owned by Endicott Johnson. Plaintiffs counter this argument by arguing that the deposition testimony of Robert Watson, a hydrologist, hired in 2004 by IBM to determine the likely source of the solvent pool and resulting contamination, excluded Endicott Johnson as a source of TCE in the solvent pool. The parties disagree as to the meaning of Mr. Watson's testimony and whether he came to any conclusion as to Endicott Johnson's role.

The court finds that the element of exclusive control, be it of the chemicals or property, need not require plaintiffs to "eliminate every alternative explanation for the event" (Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997]). Rather, plaintiffs are only required to "[d]emonstrate that the likelihood of causes other than [IBM's] negligence is so reduced that the greater probability lies at [IBM's] door, rendering it more likely than not that the injury was caused by defendant's negligence" (Rondeau v Georgia Pac. Corp., 29 AD3d 1066, 1069 [3rd Dept 2006] [internal citations omitted]; Norton v Albany County Airport Auth., 52 AD3d 871, 875 [3rd Dept 2008]). The court finds that questions of fact exist as to whether IBM had sufficient exclusive control over the property and/or chemicals so as to permit the plaintiffs to invoke the doctrine of res ipsa loquitur. On this record, the court is unable to determine as a matter of law whether the doctrine of res ipsa loquitur is applicable and, as such, the court will reserve ruling on this issue until the close of proof at trial.

CONCLUSION

In view of the foregoing, with respect to defendant IBM's motion for summary judgment dismissing plaintiffs' claims for negligence, the court finds as follows:

(a)IBM's motion for summary judgment seeking to dismiss the negligence claims of Thomas P. Ivory, Shawn (Ivory) Stevens, Tami Lynn (Ivory) Azouri, Grace Odom, and James Odom relating to an increased risk of disease is GRANTED;

(b)IBM's motion for summary judgment seeking to dismiss the negligence claim of Thomas H. Ivory relating to his non-Hodgkin's lymphoma is DENIED; and

(c)IBM's motion for summary judgment seeking to dismiss the negligence claim of Timothy Ivory relating to an increased risk of disease other than kidney cancer is GRANTED; and with respect to plaintiff Timothy Ivory's negligence claim relating to his kidney cancer is DENIED. [*16]

This constitutes the Decision of the court.

Pursuant to an agreement between the parties outlined to the court in a telephone conference held November 2, 2012, no orders shall issue or be filed in connection with this Decision until after the parties have conferred and submitted a proposed order or orders to the court, with any disputes about such proposed orders to be resolved by the court at a conference to be convened on or about December 12, 2012.

Dated:November 15, 2012

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1:By Decision & Order dated May 3, 2011, this court severed the claims of two families (the Ivory and Odom families) comprised of eight individuals from the remainder of the plaintiffs in the Blaine action (Index No. 2008-0012) creating this Ivory Action (Index No. 2012-0768). The Ivory and Odom families are sometimes referred to herein collectively as the trial plaintiffs or plaintiffs. Trial plaintiff Emmanuel Odom died on July 21, 2012 and his claims are in the process of being discontinued and, as such, are not addressed herein.

Footnote 2:The concept of vapor intrusion refers to contaminants from groundwater moving upward through the soil in gaseous form.

Footnote 3:According to Dr. Delaney, IBM may have continued to use TCE "[i]n small quantities in laboratories at the site or as a constituent of other products used in manufacturing, also in relatively small quantities" (Delaney Aff., ¶ 11).

Footnote 4:GEP stands for good engineering practice.

Footnote 5:Some of the discussions here may overlap to a certain degree with the separate motion on medical monitoring. That said, however, the court has not attempted to consolidate the discussions but has determined that separate, albeit somewhat repetitive, discussions are warranted on each motion to facilitate the inevitable appellate review.

Footnote 6:As a point of clarification before proceeding, the term "asymptomatic plaintiffs" refers to the negligence claims of increased risk of disease of Thomas P. Ivory, Shawn (Ivory) Stevens, Tami Lynn (Ivory) Azouri, Grace Odom, and James Odom, none of whom currently suffer from any existing disease. The term "asymptomatic plaintiffs" also includes that portion of Timothy Ivory's negligence claim that alleges a separate increased risk of disease for any disease other than the kidney cancer from which he currently suffers. The term "asymptomatic plaintiffs" does not apply to the negligence claim of Thomas H. Ivory relating to his non-Hodgkin's lymphoma from which he currently suffers and who does not allege any increased risk of other diseases.

Footnote 7:In plaintiffs' uniform response to IBM's first set of interrogatories, plaintiffs stated that "[plaintiff] does not to the best of [her/his] knowledge currently suffer any physical injury as a result of [his/her] exposure to TCE other than possible chromosomal damage which is presently undetectable" (Interrogatory #9).

Footnote 8:To the extent that the asymptomatic plaintiffs argue that they should not have to wait until a disease manifests to obtain recovery, the court finds that is not the situation presented here. The theory behind not requiring a plaintiff to "wait" until a disease manifests presupposes a reasonable certainty that the disease will one day surface. Here, there is simply no medical proof that there is a reasonable certainty that a disease will ever manifest.