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MEST v. CABOT CORPORATION

April 29, 2004.

MERRILL MEST et al., Plaintiffs
v.
CABOT CORPORATION et al., Defendants



The opinion of the court was delivered by: CYNTHIA RUFE, District Judge

MEMORANDUM OPINION AND ORDER

This case comes before the Court on Defendants' Motion for Summary Judgment on statute of limitations grounds.*fn1 For the reasons set forth below, Defendants' Motion is granted.

I. FACTUAL BACKGROUND*fn2

  Plaintiffs Wayne and Suzanne Hallowell (the "Hallowells") own and operate two non-contiguous dairy farms, one at 1150 Congo Road, Gilbertsville, Montgomery County, Pennsylvania (the "Congo Road Farm"), and the other at 176 Washington Road, Bechtelsville, Berks County, Pennsylvania (the "Washington Road Farm") (collectively referred to as the "Hallowell Farms").*fn3 The Hallowells and their family have farmed their land for over thirty years, and the land has been in the Hallowell family since approximately 1950. Plaintiffs Merrill and Betty Mest (the "Mests") own and operate a dairy farm located at 3059 Keyser Road, Schwenksville, Montgomery County, Pennsylvania (the "Mest Farm"). The Mests have farmed their land for at least forty years. Both the Mests and the Hallowells also lease fields near their farms to grow forage crops for use in their dairy farm operations.

  Defendants Cabot Corporation and Cabot Performance Materials (collectively referred to as "Cabot") have operated a specialty metals manufacturing facility in Boyertown, Pennsylvania (the "Boyertown Facility") since 1978. The Boyertown Facility was previously owned and operated by Kawecki Berylco. Industries, Inc. ("KBI"). According to Plaintiffs: 1) the Congo Road Farm is located approximately one mile east of the Boyertown Facility; 2) the Washington Road Farm is located approximately one mile northwest of the Boyertown Facility; and 3) the Mest Farm is located approximately four miles southeast of the Boyertown Facility.*fn4

  As a byproduct of its operations, the Boyertown Facility emits fluoride, which, while not harmful to humans, can cause a disease called fluorosis in cows that eat forage containing significant quantities of fluoride. Plaintiffs allege that fluoride emitted from the Boyertown Facility has been migrating by air to their farms and contaminating their vegetation, causing Plaintiffs' cows to suffer from fluorosis and exhibit resulting symptoms, including stained or "mottled" teeth, decreased milk production, and various reproductive problems.

  A. Fluoride Studies of the Boyertown Facility and Surrounding Land

  Since approximately 1976, numerous studies and investigations have been conducted on the Boyertown Facility's emissions and the emissions' effect on the surrounding land. Plaintiffs initiated some of these studies, while governmental agencies or third parties initiated others. Each of these investigations is discussed below.

  1. The Davis Reports

  In 1976, the Pennsylvania Department of Environmental Resources, subsequently renamed the Pennsylvania Department of Environmental Protection (both entities are referred to herein as "DEP"), studied crop damage to a farm bordering the Boyertown Facility. DEP testing revealed damage consistent with fluoride contamination and concentrations of fluoride in the corn leaves and tree leaves.*fn5

  On June 15, 1978, DEP entered into a contract with Pennsylvania State University Professor Donald D. Davis to conduct a study to determine the distribution and extent of fluoride in vegetation growing near the Boyertown Facility. Dr. Davis continued this study through 1981 and published his results in separate annual reports dated 1979, 1980, 1981 and 1982 (the "Davis Reports"). Dr. Davis testified that he visited six farmers who agreed to allow him to sample vegetation from their farms.*fn6 The Congo Road Farm was one of the six farms that participated in the study, and laboratory results of vegetative samples from the Congo Road Farm were published in the 1980 and 1981 Davis Reports.*fn7

  The Davis Reports are available to the public upon request to DEP.*fn8 Although Mr. Hallowell contends he was unaware the reports existed until 1999, he did testify to remembering strangers testing foliage at the Hallowell Farms and being told that it was a government study.*fn9 Plaintiffs rely on these reports in their Motion for Summary Judgment as evidence of Cabot's liability.

  2. The Mests' Investigation of Their Cows' Problems

  The Mests first experienced problems with their cows in 1980.*fn10 In 1982, Mr. Mest discussed his cows' health and milk production problems with Carl A. Brown, Ph.D., the feed sales manager for P.M. Brown & Sons, which had supplied the Mest farm with feed for a number of years. With the assistance of Dr. Richard Adams, a nutritionist, and Dr. Larry Hutchinson, a veterinarian, both of whom were professors at Pennsylvania State University, Dr. Brown undertook an investigation of the cause of these health and milk production problems (hereinafter referred to as the "Brown Investigation").

  As a part of the Brown Investigation, the doctors tested feed samples from the Mest Farm for heavy metals, including fluoride. The results of this testing were included in a letter to Mr. Mest dated September 28, 1982.*fn11 This letter listed the concentrations of fluoride in ...


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