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Mest v. Cabot Corp.

May 31, 2006; as amended June 5, 2006

MERRILL MEST; BETTY MEST; SUE HALLOWELL (INDIVIDUALLY AND AS TRUSTEE OF THE TRUST); WAYNE HALLOWELL (INDIVIDUALLY AND AS TRUSTEE OF THE TRUST); SEAN HALLOWELL; AMBER HALLOWELL A MINOR, BY HER NEXT FRIEND AND PARENT, WAYNE HALLOWELL); THE HALLOWELL FARMS PARTNERSHIP; THE WAYNE Z. HALLOWELL FAMILY REVOCABLE TRUST, APPELLANTS,
v.
CABOT CORPORATION; CABOT PERFORMANCE MATERIALS, APPELLEES.



On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 01-cv-04943) District Judge: Honorable Cynthia M. Rufe.

The opinion of the court was delivered by: Fuentes, Circuit Judge.

PRECEDENTIAL

Argued November 8, 2005

Before: ROTH, FUENTES, and GARTH, Circuit Judges.

OPINION OF THE COURT

Wayne and Suzanne Hallowell and Merrill and Betty Mest are dairy farmers whose cows suffered from various ailments over the course of twenty years before being diagnosed with fluorosis in 1999.*fn1 Upon learning the cause of their cows' symptoms, the Hallowells and the Mests sued Cabot Corporation and Cabot Performance Materials (collectively, "Cabot") alleging, among other things, that Cabot engaged in the systematic poisoning of their dairy cows and farmland over several decades. Specifically, they claim that the hydrogen fluoride Cabot released from a nearby factory poisoned the vegetation upon which their livestock fed, and that Cabot fraudulently misled the plaintiffs to believe that the emissions were harmless. The District Court, concluding that the plaintiffs failed to exercise reasonable diligence to discover the cause of their cows' symptoms, granted summary judgment dismissing all of the plaintiffs' claims stemming from conduct that occurred prior to November 10, 1998, as time-barred. The District Court also dismissed the plaintiffs' claims of fraud and negligence per se, and held that the plaintiffs were not entitled to damages for emotional distress. We conclude that, because there exists a material issue of fact as to whether the plaintiffs exercised reasonable diligence in determining the cause of their cows' symptoms, the plaintiffs' claims are not time-barred. Accordingly, we vacate in part, affirm in part, and remand for further proceedings.

I. Facts

The Hallowells and the Mests, together with certain other plaintiffs, own and operate dairy farms (the "Hallowell farms" and the "Mest farm," respectively) in Boyertown, Pennsylvania. The plaintiffs' farms are located one to four miles from a facility (the "Cabot Facility") owned and operated by Cabot.*fn2

As early as 1972, the Hallowells began to notice disturbing symptoms in their dairy cows. The cows were not producing milk as expected and suffered from a variety of physical problems for which the Hallowells could find no explanation. The Hallowells consulted dairy farm specialists, including their veterinarians, nutritionists, breeders, and an agricultural extension agent. Over the course of the next two decades, the Hallowells were given various pieces of advice from these experts, which they followed diligently. When Wayne Hallowell suspected radiation poisoning, he administered iodine to counteract it. The Hallowells altered the cows' nutritional program upon the advice of nutritionists. When they were advised that the problems might be chemical in nature, the Hallowells tested for several chemicals, although they did not initially test for fluoride. All the chemical tests came back negative. The Hallowells sent blood samples to experts at Michigan State University and were told that the results were normal. The Hallowells also installed a new air ventilation system and, after their veterinarian suggested that their cows' drinking water might be contaminated, they installed a new drinking water system. None of these efforts cured the cows of their ailments.

At some point during the 1970s, the Hallowells noticed a strange smell emanating from the Cabot Facility. They telephoned the Cabot Facility to inquire into the smell and whether Cabot was releasing any harmful emissions. (Id.) The Hallowells allege that, during these calls, Cabot repeatedly asserted that any emissions from Cabot were harmless and could not hurt the Hallowells' dairy cows. (Id.) The Hallowells also allege that Cabot asserted that it carefully measured all emissions to ensure safety and compliance with the law.

In 1979, Hallowell contacted the Pennsylvania Department of Environmental Protection ("PADER") about the problems his cows were experiencing. Since 1976, PADER, together with Cabot, had been investigating the connection between fluoride emissions from the Cabot Facility and crop damage on farms adjacent to the Cabot Facility.*fn3 Between 1978 and 1983, Dr. Donald Davis ("Davis") of Penn State sampled forage crops on six dairy farms surrounding the Cabot facility, including one of the

Hallowell farms. On eight separate occasions during this period, PADER personnel and Davis took samples of the forage crops on one of the Hallowell farms. (JA at 632, 662.) Davis's resulting reports (the "Davis Reports"), published in the early 1980s, discuss the symptoms of fluorosis and note that fluorosis is "of serious concern to farmers located near sources of fluoride." The initial report identifies samples of leaves taken from the fence row of the Hallowell farms as having a higher fluoride concentration than those of the town area. (SA at 9-10, 22.) The report concludes, among other things, that the levels of fluoride "warrant[ed] consideration that the disease 'fluorosis' might occur in cattle fed the fluoride contaminated material." (SA at 4-5.) However, PADER did not inform Hallowell of the study or the Davis Reports.*fn4

The Hallowells continued to enlist several experts in order to determine the cause of their cows' problems. In 1996, the Hallowells consulted Tim Fritz ("Fritz"), the County Extension Agent, in their investigation. Fritz contacted experts from the University of Pennsylvania New Bolton Center ("New Bolton") to evaluate the Hallowells' problem. After its investigation (the "New Bolton study"), New Bolton specifically ruled out fluoride as the cause of the cows' symptoms. (JA at 1512.) Although New Bolton could not determine the cause of the cows' illness, it suggested that the problem was most likely farm-specific, having to do with the mats in the cows' stalls. Hallowell responded by building a new barn with new mats in the stalls. In 1998, Hallowell enlisted the aid of the Environmental Protection Agency (the "EPA") which, after conducting tests, concluded that the problem was farm-specific and not environmental.

During the course of the New Bolton testing, Hallowell phoned Cabot for information about possible contaminants from the Cabot Facility. Hallowell asked Cabot if something might be wrong with his drinking water because of Cabot's activities. Cabot assured Hallowell that there was no danger with regard to his water. Hallowell also inquired into possible radiation danger, and again Cabot assured him there was no danger. Cabot admits that, during the course of the conversation, it may have assured Hallowell that there was no danger from the Cabot Facility's fluoride emissions, that they monitored their fluoride emissions closely to ensure they were at safe levels for crops and animals, and that the emissions were not in sufficient quantities to harm his cows. (JA at 448.)

Meanwhile, as early as 1980, Merrill Mest ("Mest") began noticing problems with his dairy cows, including mottled teeth, low milk production, an unusual number of aborted pregnancies, and breeding problems. (JA at 2171.) Mest consulted his veterinarian, agricultural extension agent, and nutritionist, some of whom concluded that bacteria in the cows' rumen were being killed but did not know why.*fn5 On the advice of their nutritionist, Dr. Carl Brown ("Brown"), the Mests tried nutritional solutions.

By 1982, the symptoms had not abated and no one had been able to provide the Mests with a definitive diagnosis. The Mests' agricultural extension agent and Brown suggested that fluoride might be the cause of the problems. Based on this advice, Mest hired experts from Pennsylvania State University ("Penn State"): Dr. Richard Adams ("Adams"), a nutritionist, and Dr. Larry Hutchinson ("Hutchinson"), a veterinarian. Brown, Adams, and Hutchinson discussed the possibility that fluoride might be the cause of the cows' symptoms, and decided to analyze feed samples for fluoride. The Penn State study analyzed the feed samples at two different laboratories and performed a fluoride analysis on bone ash from a calf on the Mest farm. As a result of their investigation, Adams and Hutchinson did not reach a definitive diagnosis, but did conclude that the Mests' cows did not suffer from fluorosis. (JA at 2172.) After informing Mest of this, however, Hutchinson sent Mest an additional letter dated January 5, 1983, reporting that the fluoride content of the bone ash sample was "at least marginally high" and recommending that fluoride "should be studied in any new outbreak of problems." (JA at 777.) Mest denies that he ever received this letter and, indeed, the copy of the letter in the record is not properly addressed to the Mests.*fn6 (JA at 143, 777, 2006, 2172.)

Over the course of the next decade, the Mests continued in vain to search for the cause of their cows' symptoms. Mest had weekly or monthly consultations with his nutritionist, veterinarian, and agricultural extension agent. He also routinely tested his cows for infections. On two separate occasions in the mid-1980s, Mest brought sick calves for evaluations at a state laboratory in Summerdale, Pennsylvania. In the late 1980s or early 1990s, Mest contacted PADER about his problems. He had his water and feed tested by PADER and the EPA, but the results were normal. None of these attempts yielded a definitive diagnosis.

In March 1999, Bill Smedley ("Smedley"), an environmental investigator for the nonprofit organization GreenWatch Inc. ("GreenWatch"), heard about the problems on the Mest and Hallowell farms and contacted the farmers. The Mests and the Hallowells agreed to pay GreenWatch to conduct a limited investigation. During the course of its investigation, GreenWatch reviewed PADER's files and obtained the Davis Reports. GreenWatch also retained the services of Dr. Lennart Krook ("Krook") of Cornell University. After conducting various tests on the cows, Krook diagnosed the Mests' cows and the Hallowells' cows with fluorosis, contracted by eating contaminated vegetation.

After this diagnosis, the parties entered into a Tolling/Standstill Agreement, under which the statute of limitations was tolled from December 31, 1999 until September 30, 2000. Less than one year later, on August 10, 2001, the plaintiffs brought this action against Cabot seeking damages arising from the alleged systematic poisoning of their dairy cows through fluoride emissions that contaminated the area's vegetation, and from the alleged fraudulent misrepresentations and omissions regarding the safety of Cabot's emissions. The plaintiffs also brought claims for trespass, nuisance, negligent interference with business, outrageous conduct, and negligence per se.

After the completion of discovery, the District Court granted summary judgment dismissing all of the plaintiffs' claims based on Cabot's activities prior to November 10, 1998, as barred by the two-year statute of limitations. In a subsequent opinion, the District Court also granted summary judgment with respect to the plaintiffs' fraud claims and claims for negligence per se, and held that the plaintiffs were not entitled to damages for emotional distress under Pennsylvania law. The plaintiffs now appeal these rulings.

II. Discussion

A. Statute of ...


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