Jones v. Chemetron Corp. ( 2000 )


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  •                                                                                                                            Opinions of the United
    2000 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-9-2000
    Jones, et al. v. Chemtron Corp.
    Precedential or Non-Precedential:
    Docket 99-3500
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    Recommended Citation
    "Jones, et al. v. Chemtron Corp." (2000). 2000 Decisions. Paper 94.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2000/94
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    Filed May 9, 2000
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 99-3500
    PHYLLIS JASKEY JONES; PAMELA JO SWANSINGER;
    SANDRA JASKEY HUJARSKI; PATRICIA HUJARSKI;
    JANICE JASKEY BUTVIN; FRANK BUTVIN; ROBERT
    BUTVIN; BRIAN BUTVIN; SUSAN BUTVIN; WALTER
    ANIELSKI; ARLENE VANS; YVONNE VANS BEKOSCKE;
    ANTHONY VANS; GREGORY VANS; CAROL SCHULTZ;
    MARY SCHAFFER; BRITTANY CULL; AMANDA
    SCHAFFER; IVAN SCHAFFER; STEPHANIE SCHAFFER;
    THERESA HUJARSKI ROSS,
    Appellants
    v.
    CHEMETRON CORPORATION
    Appeal from the United States District Court
    For the Western District of Pennsylvania
    D.C. No.: 98-cv-01776
    District Judge: Honorable Donald J. Lee
    Argued: January 25, 2000
    Before: GREENBERG, ROTH, and ROSENN,
    Circuit Judges.
    (Filed May 9, 2000)
    Deborah J. Papushak, Esquire
    (argued)
    William Mitchell, Esquire
    Armstrong, Mitchell, Damiani &
    Zaccagnini
    1725 The Midland Building
    101 Prospect Avenue, West
    Cleveland, OH 44115-1091
    Counsel for Appellants
    Micah D. Green, Esquire (argued)
    Richard Gurbst, Esquire
    Adam R. Fox, Esquire
    Squire, Sanders & Dempsey L.L.P.
    4900 Key Tower
    127 Public Square
    Cleveland, OH 44114-1304
    Counsel for Appellee
    OPINION OF THE COURT
    ROSENN, Circuit Judge.
    This appeal marks the second time this litigation has
    come before this court. It arises out of a bankruptcy
    proceeding that began when Chemetron Corporationfiled a
    Chapter 11 bankruptcy petition in the United States
    Bankruptcy Court for the Western District of Pennsylvania
    in early 1988. The bankruptcy court confirmed
    Chemetron's bankruptcy reorganization plan on July 12,
    1990. On March 2, 1992, Phyllis Jaskey Jones and
    fourteen other persons filed a state law tort action in the
    Court of Common Pleas of Cuyahoga County, Ohio ("the
    Cleveland Action") seeking monetary damages and other
    relief for injuries allegedly sustained from exposure to
    radioactive and other toxic and hazardous substances
    Chemetron deposited at the Bert Avenue dump, a site
    located in their residential neighborhood of Newburgh
    Heights, Ohio. The suit was later amended to name a total
    of twenty-one plaintiffs. Chemetron moved to dismiss that
    action on the ground that the bankruptcy court had
    2
    retained jurisdiction over the issues presented when it
    confirmed the reorganization plan.
    The parties agreed to stay the Cleveland Action, and the
    plaintiffs filed a motion in the bankruptcy court to allow
    their late-filed claims, or alternatively for an adversarial
    proceeding to determine that their claims had not been
    discharged by the bankruptcy confirmation order. At the
    time they filed their motion, the plaintiffs were scattered
    across Ohio and as far away as Texas. In support of their
    motion to permit late-filing, the plaintiffs argued that they
    had not been provided with sufficient notice of the
    bankruptcy proceeding, and that they were unaware that
    their illnesses were the result of Chemetron's conduct at
    the time Chemetron filed for bankruptcy. In support of their
    request for a determination of nondischargeability, the
    plaintiffs contended that their claims had accrued after the
    confirmation of Chemetron's bankruptcy reorganization
    plan.
    The bankruptcy court agreed that the plaintiffs had
    received inadequate notice, and permitted the latefiling. In
    re Allegheny Int'l, Inc. (Jones v. Chemetron Corp.), 
    158 B.R. 356
    (Bankr. W.D. Pa. 1993). The United States District
    Court reversed. 
    170 B.R. 83
    (W.D. Pa. 1994). The appeal
    came to this court, which ruled that the plaintiffs had
    received sufficient notice of the bankruptcy proceeding. We
    remanded to the bankruptcy court, however, to determine
    whether the plaintiffs should still be permitted tofile their
    claims based on excusable neglect pursuant to Bankruptcy
    Rule 9006(1). Chemetron Corp. v. Jones, 
    72 F.3d 341
    (3d
    Cir. 1995), cert. denied, 
    517 U.S. 1137
    (1996) [hereinafter
    Chemetron I].
    On remand, the bankruptcy court held, by opinion and
    order dated September 14, 1998, that the plaintiffs had
    failed to demonstrate excusable neglect. Turning to their
    motion for an adversarial proceeding, the court held that
    the plaintiffs' claims had accrued prior to the bar date and
    to the 1990 confirmation of Chemetron's reorganization
    plan; they therefore were discharged by the court's
    confirmation order. The district court affirmed by
    3
    memorandum opinion dated May 18, 1999. This timely
    appeal followed.1 We affirm in part and reverse in part.
    I.
    The underlying facts are set forth in this court's prior
    opinion in this case, and need only be summarized here.
    Beginning in 1965, appellee Chemetron Corporation
    ("Chemetron") owned and operated a manufacturing facility
    on Harvard Avenue in Cuyahoga Heights, Ohio, as well as
    a nearby landfill on Bert Avenue in Newburgh Heights,
    Ohio. From 1965 to 1972, Chemetron employed a
    manufacturing process at the Harvard Avenue facility that
    utilized depleted uranium. After Chemetron ceased to use
    this process, it demolished a portion of its Harvard Avenue
    facility and placed a quantity of rubble from the demolition
    in the Bert Avenue landfill.2 This rubble was apparently
    contaminated due to radiation exposure.
    Between 1980 and 1988, Chemetron was involved in
    periodic clean-up efforts at both the Harvard Avenue and
    Bert Avenue sites at the direction of the Nuclear Regulatory
    Commission ("NRC"), with some involvement by the federal
    and Ohio Environmental Protection Agencies. The presence
    of hazardous materials at the Bert Avenue dump and these
    efforts to clean up the area received considerable local
    attention beginning shortly after its discovery in 1980. The
    local press reported on these cleanup efforts for the next
    decade. Town meetings were held in which environmental
    officials explained the situation to area residents. A
    community watchdog group formed that distributed a
    questionnaire to everyone in the neighborhood requesting
    information about contact with the dump and medical
    conditions suffered. The mayor's office sent out a newsletter
    in 1980 noting concern about the contamination. As early
    _________________________________________________________________
    1. The   bankruptcy court had subject matter jurisdiction pursuant to 28
    U.S.C.   S 157. The district court had appellate jurisdiction pursuant to 28
    U.S.C.   S 158(a). This court has appellate jurisdiction pursuant to 28
    U.S.C.   S 158(d).
    2. Later in 1975, Chemetron sold both sites to McGean Chemical
    Company. McGean Chemical Co. subsequently merged with Rohco, Inc.,
    to become McGean-Rohco, Inc., the current owner of both sites.
    4
    as 1980, another resident in the area filed a lawsuit against
    Chemetron charging that the presence of hazardous
    materials at the Bert Avenue dump was responsible for her
    daughter's health problems.
    For the next decade, cleanup efforts persisted, but as this
    court noted in its earlier decision in this case, these efforts
    were of "dubious" efficacy. Chemetron I , 72 F.3d at 344. By
    1990, local attention swelled again, recognizing that the
    contamination danger persisted. Although press accounts
    were at times ambiguous concerning the severity of the
    danger presented by the Bert Avenue dump, some articles
    reported that several families in the neighborhood were
    suffering adverse health effects.
    On February 20, 1988, Chemetron filed a petition for
    reorganization under Chapter 11 of the Bankruptcy Code.
    Following Bankruptcy Rule 3003(c)(3), the bankruptcy
    court issued a bar date order, fixing the claims bar date at
    May 31, 1988. Under bankruptcy law, the bar date is the
    last day on which existing claims can be filed against the
    debtor. The bar date order required that actual notice be
    provided to all persons known to have claims against the
    debtors. The order required notice to all other claimants by
    publication in the national editions of the New York Times
    and Wall Street Journal. Chemetron complied with the
    order and, in addition, voluntarily published notice in seven
    other newspapers in areas where it was doing business at
    the time of the filing. On July 12, 1990, the bankruptcy
    court confirmed Chemetron's reorganization plan.
    Nevertheless, Jones and the other plaintiffs assert in
    affidavits that they were unaware of the degree of risk
    posed to their health and safety by the contaminated site
    until after reading about a 1991 federal lawsuitfiled
    against Chemetron in Cleveland by other local residents.
    Only then, the plaintiffs assert, did they contact lawyers,
    who proceeded to gather their medical records, have these
    records analyzed by physicians, and subsequently report to
    the plaintiffs that their health problems resulted from the
    contamination.
    In March 1992, almost four years after the claims bar
    date and twelve years after the first newspaper articles
    5
    reported on contamination at the sites, Phyllis Jones and
    ultimately twenty other individuals brought suit against
    Chemetron, McGean Chemical Co., and McGean-Rohco,
    Inc., in the Court of Common Pleas of Cuyahoga County,
    Ohio. The gravamen of the complaint alleged injury from
    exposure to toxic chemicals as a result of time spent living
    in or visiting the Bert Avenue area.
    Of the twenty-one plaintiffs, one, Ivan Schaffer, was born
    on August 27, 1992, more than two years after the
    bankruptcy court confirmed Chemetron's plan of
    reorganization.
    II.
    We first discuss the plaintiffs' claim that the bankruptcy
    court erred in concluding that they failed to demonstrate
    excusable neglect. Next, we address their argument that the
    bankruptcy court erred in finding that their claims arose
    prior to the confirmation of Chemetron's bankruptcy
    reorganization plan. Finally, we revisit the issue of notice
    with regard to one of the plaintiffs.
    A.
    On remand from this court's decision in Chemetron I, the
    plaintiffs argued that the bankruptcy court should permit
    them to file their claims late because their failure to file
    prior to the May 31, 1998 bar date was attributable to
    excusable neglect.3 The district court affirmed the
    bankruptcy court's ruling that the plaintiffs failed to
    demonstrate excusable neglect under the test enunciated in
    Pioneer Investment Services Co. v. Brunswick Associates
    Limited Partnership, 
    507 U.S. 380
    , 395 (1993). 4 It
    _________________________________________________________________
    3. Federal Rule of Bankruptcy Procedure 9006(b)(1) provides:
    [W]hen an act is required or allowed to be done at or within a
    specified period by these rules or by a notice given thereunder or
    by
    order of court, the court for cause shown may at any time in its
    discretion . . . on motion made after the expiration of the
    specified
    period permit the act to be done where the failure to act was the
    result of excusable neglect.
    4. Under this test, to show "excusable neglect" sufficient to waive the
    requirement that all bankruptcy claims be filed by the bar date, a
    6
    concluded that to allow the plaintiffs to proceed with claims
    potentially amounting to $36 million four years after
    Chemetron's bankruptcy petition was filed and two years
    after its reorganization plan was confirmed "would cause
    disruption to the bankruptcy process that has already
    taken place," and therefore would cause extreme prejudice
    to the debtor." (Bankr. Op. at 7). It further noted that "the
    length of delay in this case was significant," and that the
    plaintiffs did not contest this. (Bankr. Op. at 8). The court
    also concluded that there is no evidence of bad faith on the
    part of the plaintiffs. (Bankr. Op. at 15). Finally, the court
    rejected the plaintiffs' arguments (1) that Chemetron's
    prepetition actions contributed to their delay infiling their
    claim, by Chemetron's misrepresentation of the danger
    present at the Bert Avenue dump to the relevant
    government agencies and to the public (Bankr. Op. at 9); (2)
    that the investigating agencies failed to adequately
    investigate or independently follow up with Chemetron's
    clean-up efforts; and (3) that newspaper accounts
    inaccurately reported the extent of the contamination, and
    failed to warn the community that residents could suffer
    physical harm from the exposure.
    The bankruptcy court made the following pertinent
    findings:
    [Chemetron's cleanup] efforts were not satisfactory
    according to reports by the NRC. However, in the
    summer and early fall of 1980, several newspaper
    articles were published in the Cleveland Plain Dealer
    and Cleveland Press regarding the contamination and
    the concerns expressed by the residents of the area.
    Specifically, articles appeared in the Cleveland Plain
    Dealer on 7/9/80, 9/5/80, 9/10/80, 9/12/80,
    11/21/80 and 11/21/80. The Cleveland Press also had
    an article on July 8, 1980. In particular, one article
    _________________________________________________________________
    bankruptcy court must make an equitable inquiry into the totality of the
    relevant circumstances. Relevant circumstances to be considered include
    (1) the danger of prejudice to the debtor, (2) the length of the delay and
    its potential impact on judicial proceedings, (3) the reason for the
    delay,
    including whether it was within the reasonable control of the movant,
    and (4) whether the movant acted in good faith. 
    Id. 7 reported
    on a town meeting held in September of 1980
    to address residents concerns about the levels of
    radiation in the area. The article indicated that six
    members of the Nuclear Regulatory Commission as well
    as approximately 80 people from the community were
    in attendance. The residents were informed that while
    levels of radiation were present on the Chemetron and
    McGean properties, the levels were not high enough to
    cause harm.
    In addition to the potential dangers being reported in
    the newspapers, members of the community organized
    and formed the Concerned Citizens of Newburgh
    Heights. This association prepared and distributed a
    community health survey which stated that the citizens
    were working to remove the danger of hazardous waste
    from the community.
    Several investigative and administrative agencies
    were involved in the assessment and cleanup efforts in
    conjunction with the NRC including the U.S.
    Environmental Protection Agency ("EPA"), the Ohio
    Environmental Protection Agency and the Ohio Health
    Department. A Congresswoman made inquiry and
    follow up inquiry to the federal EPA in the fall of 1980
    into 1981. There was awareness of the site and
    attention focused on it by at least 1980. This level of
    awareness and inquiry does not support plaintiffs
    contention that misrepresentations by Chemetron
    hindered them from learning the necessary
    information.
    (Bankr. Op. at 11-12). Based on these findings, the court
    further found "that the toxic site was well known in the
    community." (Bankr. Op. at 12).
    Moreover, the court found that even assuming
    Chemetron did mislead or provide inadequate information
    regarding the contamination to the community, the
    plaintiffs failed to adequately investigate the situation
    themselves, a factor wholly within their control. Specifically,
    the court noted that "[n]ot one of [the plaintiffs'] affidavits
    indicates what efforts had been made through the course of
    plaintiffs' medical history to determine the cause of their
    8
    injuries until they learned of the class action suitfiled by
    the other residents . . . [,] despite the fact that certain
    affidavits state that the families had serious health
    problems." (Bankr. Op. at 14). Moreover, the court noted
    that "nothing in the record[ ] . . . suggest[s] that plaintiffs
    sought information from Chemetron which may have
    assisted them in their determination which was denied."
    (Bankr. Op. at 14-15).
    We must accept the bankruptcy court's factual
    determinations unless clearly erroneous. See Fed. R.
    Bankr. P. 8013. Our review of issues of pure law, or mixed
    questions of law and fact, is plenary. See Mellon Bank, N.A.
    v. Metro Communications, Inc., 
    945 F.2d 635
    , 642 (3d Cir.
    1991), cert. denied, 
    503 U.S. 937
    (1992). We review the
    bankruptcy court's ultimate determination regarding the
    existence of excusable neglect for abuse of discretion. See
    In re Vertientes, Ltd., 
    845 F.2d 57
    , 59 (3d Cir. 1988).
    On appeal, the plaintiffs contend that the bankruptcy
    court imposed an "unreasonable burden" on them because
    they had no way of knowing that they had a claim against
    Chemetron prior to the 1988 bar date, and therefore the
    delay was beyond their control. The burden of proving
    excusable neglect lies with the late-claimant. See In re
    Trump Taj Mahal Assoc., 
    156 B.R. 928
    , 936 (Bankr. D.N.J.
    1993), aff 'd, Civ. A. No. 93-3571, 
    1993 WL 534494
    , at *5
    (D.N.J. Dec. 13, 1993).5 Moreover, "[i]gnorance of one's own
    claim does not constitute excusable neglect." In re Best
    Prods. Co., Inc., 
    140 B.R. 353
    , 359 (Bankr. S.D.N.Y. 1992),
    cited with approval in In re Trans World Airlines, Inc., 
    96 F.3d 687
    , 690 (3d Cir. 1996).
    We conclude that the determinations of the bankruptcy
    court that contamination generally was known in the
    community in the early 1980's, and that some residents
    publicly expressed concern about the health effects of these
    toxins in press accounts and at public meetings, are
    _________________________________________________________________
    5. The plaintiffs, relying on cases involving motions for summary
    judgment, suggest that the bankruptcy court should have viewed the
    facts in a light more favorable to them. This case does not involve
    summary judgment, however, and therefore the bankruptcy court
    properly placed the burden on the plaintiffs.
    9
    supported by the record. Moreover, as discussed in greater
    detail in Part II.B. below, the record supports the court's
    observation that the plaintiffs introduced no evidence to
    show what measures they took to specifically investigate
    the cause of their medical problems. Therefore, these
    findings are not clearly erroneous.6
    Accordingly, the bankruptcy court committed no abuse of
    its discretion in holding that the plaintiffs have failed to
    sustain their burden of proving excusable neglect. The
    prejudice to the "fresh start" to which Chemetron was
    entitled as a result of the Chapter 11 reorganization, the
    delay of four years after the bar date and two years after
    the confirmation date before the plaintiffs brought their
    claim, and their failure to specifically investigate the cause
    of their illnesses, even though the danger from the Bert
    Avenue dump generally was known in the community,
    combine to defeat their request that they be permitted to
    file late claims.
    B.
    The plaintiffs also filed a motion for an adversarial
    proceeding requesting a determination by the bankruptcy
    court that even absent excusable neglect, their claims arose
    after the confirmation of Chemetron's bankruptcy
    reorganization plan. Therefore, their Cleveland Action was
    unaffected by the earlier bankruptcy proceeding.
    The parties dispute the correct standard for determining
    when the plaintiffs' claims arose. Chemetron contends that
    the question of when the plaintiffs' claims arose is not
    governed by state law dictating when a cause of action
    _________________________________________________________________
    6. The plaintiffs make an additional argument that the bankruptcy court
    should have concluded that their failure to file claims prior to the bar
    date was excusable because they are insufficiently sophisticated to know
    that they might have claims against Chemetron. (Appellants' Br. at 31-
    32). However, the plaintiffs' degree of sophistication is an issue that is
    relevant to the adequacy of the notice of bankruptcy proceedings they
    received, In re Grand Union Co., 
    204 B.R. 864
    , 872, 880 (Bankr. D. Del.
    1997), not to the issue of excusable neglect. The adequacy of notice in
    this case was (with one exception, discussed infra at note 14)
    conclusively decided by this court in Chemetron I.
    10
    accrues, but rather by a federal common law of
    bankruptcy. Although significant authority supporting this
    proposition exists in other circuits, this circuit has held the
    reverse. In Matter of Frenville Co., Inc., 
    744 F.2d 332
    (3d
    Cir. 1984), cert. denied, 
    469 U.S. 1160
    (1985), this court
    held that in most circumstances a "claim" arises for
    bankruptcy purposes at the same time the underlying state
    law cause of action accrues. 
    Id. at 337.
    We are cognizant of
    the criticism the Frenville decision has engendered,7 but it
    remains the law of this circuit. See Matter of Penn Central
    Transp. Co., 
    71 F.3d 1113
    , 1114-15 (3d Cir. 1995) (applying
    rule of Frenville), cert. denied, 
    517 U.S. 1221
    (1996); In re
    Bryer, 
    216 B.R. 755
    , 759 (Bankr. E.D. Pa. 1998) (same).
    Accordingly, this court must look to Ohio tort law to
    determine when the plaintiffs' claims accrued.
    The Ohio Supreme Court has held that where an injury
    is latent, the "discovery rule" dictates that a cause of action
    based on that injury accrues, for statute of limitations
    purposes, when the injury is manifest and when the injured
    party knows or has reason to know the cause of the injury.
    Liddell v. SCA Servs. of Ohio, Inc., 
    635 N.E.2d 1233
    , 1237-
    39 (Ohio 1994); O'Stricker v. Jim Walter Corp. , 
    447 N.E.2d 727
    , 732 (Ohio 1983). That court, however, has never
    addressed whether knowledge of causation is required even
    where an injury is manifest, i.e., where the plaintiff is
    aware of actual physical harm. Ohio law is not particularly
    clear on this issue.
    Nevertheless, several Ohio courts have held that some
    _________________________________________________________________
    7. See, e.g., Epstein v. Official Comm. of Unsecured Creditors of Estate
    of
    Piper Aircraft Corp., 
    58 F.3d 1573
    , 1576 n.2 (11th Cir. 1995); Grady v.
    A.H. Robins Co., Inc., 
    839 F.2d 198
    , 201-02 (4th Cir.), cert. dismissed
    sub nom. Joynes v. A.H. Robins Co, Inc., 
    487 U.S. 1260
    (1988); In re
    Black, 
    70 B.R. 645
    , 648-51 (Bankr. D. Utah 1986); Acevedo v. Van Dorn
    Plastic Machinery Co., 
    68 B.R. 495
    , 497-98 (Bankr. E.D.N.Y.1986); In re
    Johns-Manville Corp., 
    57 B.R. 680
    , 688-90 (Bankr. S.D.N.Y. 1986); In re
    Edge, 
    60 B.R. 690
    , 701-05 & n.13 (Bankr. M.D. Tenn. 1986); In re
    Yanks, 
    49 B.R. 56
    , 57-59 (Bankr. S.D. Fla. 1985); In re Baldwin-United
    Corp., 
    48 B.R. 901
    , 903 (Bankr. S.D. Ohio 1985); Ralph R. Mabey &
    Annette W. Jarvis, In re Frenville: A Critique by the Nat'l Bankruptcy
    Conference's Comm. on Claims & Distributions, 42 Bus. Law. 697, 703-14
    (1987).
    11
    knowledge of the relationship between the putative
    plaintiff 's injury and the illegal conduct responsible for that
    injury is required for a cause of action to accrue (although
    they disagree about the required degree of knowledge
    regarding how proximately the injury resulted from the
    defendant's conduct). Barker v. A.H. Robins Co. , No. 84AP-
    297, 
    1985 WL 9826
    (Ohio Ct. App. Jan. 17, 1985), an
    unpublished decision of the Court of Appeals of Ohio, is
    most directly on point. There, the plaintiff brought an
    action to recover damages for an infection requiring
    removal of her left ovary, resulting from her use of
    defendant's intra-uterine device. The trial court dismissed
    the complaint on statute of limitations grounds.
    Interpreting Ohio precedent, the Court of Appeals held that
    application of the "discovery rule" in all cases of bodily
    injury requires a determination as to when the plaintiff
    knew or should have known of the "causal relationship"
    between the defendant's actions and her injuries. 
    Id. at *5-
    6. In so holding, the court expressly rejected the notion that
    the knowledge of causation required by cases like O'Stricker
    was limited to situations in which the plaintiff 's injuries
    were latent. Id.8
    Apparently assuming without deciding that such a rule
    applied, the bankruptcy court found that the plaintiffs had
    _________________________________________________________________
    8. Ohio statutes also provide for application of the discovery rule to
    various torts. Most relevant here is Ohio Revised Code S 2305.10, which
    states:
    (A) . . . [A]n action . . . for bodily injury . . . shall be
    brought within
    two years after the cause of action accrues. Except as provided in
    divisions (B)(1) to (4) of this section, a cause of action accrues
    under
    this division when the injury . . . occurs.
    (B)(1) For purposes of division (A) of this section, a cause of
    action
    for bodily injury . . . that is caused by exposure to hazardous or
    toxic chemicals . . . accrues upon the date on which the plaintiff
    is
    informed by competent medical authority that the plaintiff has an
    injury that is related to the exposure, or upon the date on which
    by
    the exercise of reasonable diligence the plaintiff should have
    known
    that the plaintiff has an injury that is related to the exposure,
    whichever date occurs first.
    Ohio Rev. Code Ann. S 2305.10 (emphasis added).
    12
    failed to present evidence to show that they satisfied their
    duty to investigate the cause of their manifest injuries.
    Specifically, the court noted that the record amply
    demonstrated that other residents in the Newburgh Heights
    community were aware of the existence of harmful
    substances at the Bert Avenue dump prior to 1990. (Bankr.
    Op. at 21-23). The bankruptcy court also found it
    significant that one neighborhood resident, Barbara Looby,
    had made inquiry into a connection between medical
    conditions and exposure to toxins present at the dump as
    early as 1980. (Bankr. Op. at 22). The court found that
    there was no reason
    that competent medical authority was unable to make
    the appropriate diagnosis. There is nothing to suggest
    that the medical community at the time did not have
    the knowledge or necessary scientific evidence to
    determine medical conditions resulting from toxic
    exposure.
    (Bankr. Op. at 22). Accordingly, the bankruptcy court
    determined that had the plaintiffs undertaken a reasonable
    investigation of the cause of their manifest injuries, they
    would have discovered this potential cause, and their
    causes of action would have arisen prior to thefiling of
    Chemetron's bankruptcy petition. Consequently, the court
    held their claims were discharged by the 1990 confirmation
    order.
    On appeal, the plaintiffs contend that the bankruptcy
    court's factual findings were clearly erroneous. Specifically,
    they contend that the court erred in finding that they failed
    to investigate the cause of their injuries. In support of this
    contention, however, the plaintiffs primarily argue that
    notwithstanding press accounts, community meetings and
    newsletters from the mayor's office, they personally were
    unaware of the danger posed by the dump. Moreover, they
    claim that Chemetron contributed to their obliviousness
    because it knew what chemicals were present at the dump,
    but lied to the community about it.
    As the bankruptcy court observed, the Ohio Supreme
    Court has superimposed on the "discovery rule" a
    "reasonable investigation" requirement, which essentially
    13
    acts to end the tolling of the statute of limitations prior to
    actual discovery of the nature and cause of a putative
    plaintiff 's injury at the time he or she should have
    discovered this information through the exercise of
    reasonable diligence. See Flowers v. Walker, 
    589 N.E.2d 1284
    , 1288-89 (Ohio 1992);9 see also Ohio Rev. Code Ann.
    S 2305.10 (cause of action may accrue "upon the date on
    which by exercise of reasonable diligence the plaintiff
    should have known that the plaintiff has an injury that is
    related to the exposure"). Even the U.S. Supreme Court has
    recognized the importance of a policy requiring prospective
    plaintiffs to "initiate a prompt inquiry" regarding a
    negligence cause of action. United States v. Kubrick, 
    444 U.S. 111
    , 118, 122 (1979) (addressing accrual of claim
    under Federal Tort Claims Act); see also Zeleznik v. United
    States, 
    770 F.2d 20
    , 22-23 (3d Cir. 1985), cert. denied, 
    475 U.S. 1108
    (1986). Accordingly, we now turn to an analysis
    of whether the plaintiffs satisfied this diligence requirement.
    In their brief to this court and at oral argument, the
    plaintiffs have made reference to their repeated visits to
    their treating physicians.10 Notwithstanding these
    _________________________________________________________________
    9. Flowers was a medical malpractice case, which was governed by a one
    year statute of limitations. The court noted that in Ohio, the "discovery
    rule" had been judicially imposed in determining when such actions
    accrue. 
    Id. at 1287.
    The court then held that "[a] plaintiff need not have
    discovered all the relevant facts necessary to file a claim in order to
    trigger the statute of limitations. . . . Rather, the `cognizable event'
    itself
    puts the plaintiff on notice to investigate the facts and circumstances
    relevant to her claim in order to pursue her remedies." 
    Id. at 1287-88.
    The court further held "the identity of the practitioner who committed
    the alleged malpractice is one of the facts that the plaintiff must
    investigate, and discover, once she has reason to believe that she is a
    victim of medical malpractice." 
    Id. at 1288.
    There is no reason to believe
    the Ohio Supreme Court would not impose a similar diligence
    requirement in a toxic tort case such as this. See also supra note 8
    (quoting Ohio Rev. Stat. Ann. S 2305.10).
    10. The plaintiffs assert that the bankruptcy court "placed an
    unreasonable burden upon [them] to have greater knowledge than their
    physicians or the regulatory agencies which were involved in
    investigating the site." (Appellants' Br. at 27, 32). They contend:
    [T]he Appellants in this case had no reason to question their
    physicians about the possibility that their illnesses might have
    been
    14
    assertions, however, there is no evidence at all on this
    record that thirteen of the twenty-one plaintiffs even visited
    doctors to determine the cause of their medical problems.
    Seventeen of the plaintiffs in this case submitted
    affidavits in support of their filings in the bankruptcy court.
    Four of these affidavits imply, without stating directly, that
    the affiants had been to see doctors about their health
    problems. These affidavits include the following language:
    During the process of gathering medical information
    [for evaluation for this lawsuit], and in the normal
    course of my continuing treatment for various medical
    problems, I informed my treating physicians and
    nurses of the investigations our attorneys were
    conducting relating to the radioactive substances and
    chemicals. While none of those physicians made any
    statements to me as to the relationships between my
    medical problems and these substances and chemicals,
    they were all extremely interested.
    _________________________________________________________________
    caused by their exposure to radiation and hazardous substances at
    the Toxic Sites. When Appellants finally acquired the suspicion
    that
    their illnesses were caused by such exposure, their treating
    physicians still did not express an opinion that linked their
    illnesses
    to the exposure.
    *   *   *
    The fact is -- these Appellants knew what their doctors told them,
    and were reasonable in relying upon those statements until they
    were told otherwise by competent medical authority.
    (Appellants' Br. at 42 (emphasis in original)). Finally, they state:
    Even when Appellants' treating physicians were asked about a
    connection between their exposure to Toxic Sites and their
    injuries,
    their treating physicians did not identify a connection.
    *   *   *
    The Appellants in this proceeding have regularly seen physicians
    for
    treatment of their injuries, but were never advised by their
    physicians of a causal connection between their exposure to the
    Toxic Sites and their illnesses.
    (Appellants' Br. at 47).
    15
    (Appendix at B-496 (affidavit of Phyllis Jones), B-509
    (affidavit of Janice Jaskey Butvin), B-525 (affidavit of Arlene
    Vans), B-538 (affidavit of Sandra Jaskey Hujarski)). One
    additional affidavit states "for years my daughters and I
    had been suffering from numerous health problems for
    which our doctors had been unable to find a cause."
    (Appendix at B-499 (affidavit of Mary Schaffer 11). These
    affidavits, which at most indicate that only seven of the
    plaintiffs even went to see a physician about their medical
    problems,12 constitute the only evidence offered by the
    plaintiffs of efforts they took to determine the cause of their
    injuries. However, this vague evidence does not indicate
    when these seven plaintiffs first made attempts to see
    physicians or what other efforts they made to determine the
    cause of their injuries in a timely manner.
    Accordingly, with regard to twenty of the twenty-one
    plaintiffs, the bankruptcy court's finding that these
    plaintiffs failed to diligently investigate the cause of their
    injuries is not clearly erroneous. Its holding that these
    plaintiffs' claims were discharged by the 1990 confirmation
    order is therefore affirmed.
    C.
    We note, however, that one of the plaintiffs, Ivan
    Schaffer, was not born until August 27, 1992, more than
    two years after the bankruptcy court confirmed
    Chemetron's plan of reorganization. We believe his situation
    merits separate discussion.
    Under Chapter 11 of the Bankruptcy Code, "the
    confirmation of a plan . . . discharges the debtor from any
    debt that arose before the date of such confirmation." 11
    U.S.C. S 1141(d)(1)(A). Thus, in most circumstances,
    "confirmation of the debtor's reorganization plan discharges
    all prior claims against the debtor." Chemetron I, 72 F.3d at
    _________________________________________________________________
    11. Mary Schaffer's daughters are Amanda and Stephanie Schaffer, both
    plaintiffs to this action.
    12. These are Phyllis Jones, Janice Jaskey Butvin, Arlene Vans, Sandra
    Jaskey Hujarski, Mary Schaffer, Amanda Schaffer and Stephanie
    Schaffer.
    16
    346.13 However, if a potential claimant lacks sufficient
    notice of a bankruptcy proceeding, due process
    considerations dictate that his or her claim cannot be
    discharged by a confirmation order. In re Trans World
    Airlines, Inc., 
    96 F.3d 687
    , 689-90 (3d Cir. 1996);
    Chemetron 
    I, 72 F.3d at 346
    ; In re Harbor Tank Storage Co.,
    
    385 F.2d 111
    , 115-16 (3d Cir. 1967).
    Such due process considerations are often addressed by
    the appointment of a representative to receive notice for
    and represent the interests of a group of unknown
    creditors. See, e.g., Hatch v. Riggs Nat'l Bank, 
    361 F.2d 559
    , 566 (D.C. Cir. 1966); In re Piper Aircraft Corp., 
    168 B.R. 434
    , 436, 440 & n.12 (S.D. Fla. 1994), aff 'd, 
    58 F.3d 1573
    (11th Cir. 1995). In In re Amatex, 
    755 F.2d 1034
    (3d
    Cir. 1985), this court held that a representative could be
    appointed to represent the interests of future unknown
    asbestos claimants in bankruptcy reorganization
    proceedings because such claimants are "sufficiently
    affected by the reorganization proceedings" as to require
    some voice in them and therefore qualify as "parties in
    interest" under 11 U.S.C. S 1109(b). 
    Id. at 1041-43.
    Accord
    In re Forty-Eight Insulations, Inc., 
    58 B.R. 476
    , 477 (Bankr.
    N.D. Ill. 1986); In re UNR Indus., Inc., 
    46 B.R. 671
    , 675
    (Bankr. N.D. Ill. 1985); In re Johns-Manville Corp., 
    36 B.R. 743
    , 747-49 (Bankr. S.D.N.Y. 1984). The Amatex court did
    not decide whether future claimants are "creditors" who
    possess "claims" that may be discharged by a bankruptcy
    confirmation order. 
    Id. at 1043.
    We need not reach this
    issue, however, because in the instant case there exists a
    more fundamental problem. Ivan Schaffer cannot be
    deemed to have received adequate notice of Chemetron's
    _________________________________________________________________
    13. See also Epstein v. Official Comm. of Unsecured Creditors of Estate of
    Piper Aircraft Corp., 
    58 F.3d 1573
    , 1576, 1577 (11th Cir. 1995); In re
    Christopher, 
    28 F.3d 512
    , 515 (5th Cir. 1994); In re Waterman S.S. Corp.,
    
    157 B.R. 220
    , 221 (S.D.N.Y. 1993); In re The Charter Co., 
    113 B.R. 725
    ,
    728 (M.D. Fla. 1990); In re Eagle-Picher Indus., Inc., 
    216 B.R. 611
    , 615
    (Bankr. S.D. Ohio 1997); In re Nevada Emergency Servs., Inc., 
    39 B.R. 859
    , 861, 862 n.4 (Bankr. D. Nev. 1984).
    17
    Chapter 11 bankruptcy proceeding, because no effort was
    made to address his potential claims in that proceeding.14
    Where no action is taken to address the interests of
    unborn future claimants in a Chapter 11 bankruptcy
    reorganization proceeding, the reorganized former debtor
    cannot later avoid liability to such claimants by arguing
    that their claims were discharged in bankruptcy. Under
    fundamental notions of procedural due process, a claimant
    who has no appropriate notice of a bankruptcy
    reorganization cannot have his claim extinguished in a
    settlement pursuant thereto. See, e.g. , Mullane v. Central
    Hanover Bank & Trust Co., 
    339 U.S. 306
    , 314-19 (1950);
    Chemetron 
    I, 72 F.3d at 346
    ; In re Savage Indus., Inc., 
    43 F.3d 714
    , 721 (1st Cir. 1994). Here, Ivan Schaffer had no
    notice of or participation in the Chemetron reorganization
    plan. No effort was made during the course of the
    bankruptcy proceeding to have a representative appointed
    to receive notice for and represent the interests of future
    claimants. Therefore, whatever claim Ivan Schaffer may
    now have was not subject to the bankruptcy court's bar
    date order, Conway v. White Trucks, 
    885 F.2d 90
    , 97 (3d
    Cir. 1989), and was not discharged by that court's
    confirmation order.
    Chemetron contends that as a future claimant, Ivan
    Schaffer had sufficient notice of the bankruptcy proceeding
    because his mother, also a plaintiff to this action, had
    notice of the proceeding and was qualified to act as
    guardian for her unborn children. Although we do not
    dispute that a parent can represent the interests of her
    minor children, because of the imponderables involved, we
    do not believe the law imposes a duty upon a parent to take
    action to protect a potential claim of a child not yet
    conceived or born. Nor do we believe that in a Chapter 11
    reorganization, a bankruptcy court is obligated sua sponte
    to appoint a representative to deal with future interests if
    _________________________________________________________________
    14. In Chemetron I, we held that the plaintiffs had received sufficient
    notice of the bankruptcy proceedings. However, it is apparent from the
    face of that decision that this court did not consider the specific
    question
    of whether sufficient notice was provided to unborn future claimant Ivan
    Schaffer. Therefore, that decision does not bind us as to this issue.
    18
    no request is made. See Locks v. United States Trustee, 
    157 B.R. 89
    , 95-99 (W.D. Pa. 1993); cf. In re Chicago, Rock
    Island & Pac. R.R. Co., 
    788 F.2d 1280
    , 1282 (7th Cir. 1986)
    (holding the Fed. R. Civ. P. 17(c) does not impose on federal
    courts duty to appoint guardians for all potential litigants
    who cannot represent themselves).15 Such a duty would
    impose an enormous and unreasonable responsibility of
    prescience on the courts. Accordingly, we hold that the
    potential claim of an unborn child not represented in
    bankruptcy reorganization proceedings is not discharged by
    a confirmation order.
    III.
    Conclusion
    For the foregoing reasons, the judgment of the district
    court will be affirmed except as to plaintiff Ivan Schaffer. As
    to Ivan Schaffer, the May 18, 1999 order of the district
    court will be reversed and the case remanded with
    instructions to direct the bankruptcy court to issue a
    declaration that his potential claim was not discharged by
    the July 12, 1990 confirmation order. Each side to bear its
    own costs.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    _________________________________________________________________
    15. We do not address whether such appointment is mandatory in
    bankruptcy liquidation proceedings. Compare Forty-Eight 
    Insulations, 58 B.R. at 477
    (appointing futures representative in liquidation proceeding
    because after debtor-entity dissolves, future claimants will have no
    recourse) with 
    Locks, 157 B.R. at 96
    (appointment of futures
    representative in liquidation proceeding unnecessary).
    19
    

Document Info

Docket Number: 99-3500

Judges: Greenberg, Roth, Rosenn

Filed Date: 5/9/2000

Precedential Status: Precedential

Modified Date: 3/1/2024

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