Free Status Report - District Court of Connecticut - Connecticut

Case 3:03-cv-00945-CFD Document 186 Filed 11/03/2006 Page 1 of 3
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November 2, 2006
via the Clerk’s electronic ECF filing system
Honorable Christopher F. Droney
United States Courthouse
450 Main Street
Hartford, CT 06103
Re: Collins, etal. v. Olin Corporation, et al.
Civil Action No. CV 945 (CFD)
Dear Judge Droney:
At the status conference on October 26, 2006, the Court requested that Olin
set forth its position with respect to two issues: 1) whether all of OIin’s motions to
dismiss had been addressed, and 2) the scheduling of further discovery and
proceedings. We address each, in turn.
Olin’s Motions to Dismiss
By Order dated September 1, 2006 (Dkt # 179), the Court denied OIin’s
motion to dismiss counts 1, 3 and 7 of PIaintiffs’ Amended Complain (Dkt # 72).
These counts allege claims for negligence, gross negligence and negligence per se.
Olin had also moved to dismiss counts 5, 9, 11 and 14. In its opinion dated February
28, 2006, the Court dismissed counts 6, 10, 12 and 15 as against the Town of
Hamden. These counts are mirror images of counts 5, 9, 11 and 14 against Olin.
The Court’s reasoning as to these four counts with respect to the Town apply with
equal force as to Olin. Accordingly, it is OIin’s view that the Court has not
substantively addressed counts 5, 9, 11 and 14 as to Olin, because had it done so, it
would have applied the same reasoning as applied to the allegations against the
Town and dismissed these four counts as to Olin. Olin discusses each of these
counts, briefly, with citations to the Court’s February 28 opinion.
Count 5:
Count 5 alleges a cause of action under the Environmental Protection Act of
1971. It seeks an injunction, requiring Olin to investigate and remediate the alleged
contamination in the Newhall section of Hamden. Its allegations are identical to
ST. LOUIS • DOWNTOWN ST. LOUIS • KANSAS CITY • JEFFERSON CITY • SPRINGFIELD · PEORIA
2496866.01
CHATTANOOGA • DOWNTOWN MEMPHIS · EAST MEMPHIS · NASHVILLE

Case 3:03-cv-00945-CFD Document 186 Filed 11/03/2006 Page 2 of 3
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Honorable Christopher F. Droney
November 2, 2006
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those against the Town in Count 6. The Court dismissed Count 6 as to the Town
based on the doctrine of primary jurisdiction, deferring to the extensive, active
involvement of the Connecticut Department of Environmental Protection in
overseeing the investigation and remediation in the Newhall section of Hamden.
(See pages 6 - 17 of the February 28 opinion, especially at page 17.) The Court’s
reasoning in its February 28 opinion as to the Town is equally applicable as to Olin.
Count 9
Count 9 alleges strict liability as to Olin for an abnormally dangerous activity.
The same allegations are made against the Town in Count 10. The allegations as to
Olin and as to the Town stem from the same activities of disposal. The Court
addressed Count 10 at pages 17 — 26 of its February 28 opinion and dismissed
Count 10 as to the Town. At page 23 of it opinion, the Court stated "that there can
be no blanket or per se application of this tort to waste disposal or storage." The
same rationale applies to Olin as to the Town.
Count 11
Count 11 alleges damages for infliction of emotional distress. The same
allegations are made against the Town in Count 12. The allegations as to Olin and
as to the Town stem from the same activities of disposal. The Court addressed
Count 12 at pages 32 — 35 of its February 28 opinion. At page 33, the Court
determined that Count 12 as to the Town set forth a claim only for "intentionaI
infliction of emotional distress." The identical allegations as to Olin can only lead to
the same conclusion. At page 35 of its February 28 opinion, the Court concluded
that the plaintiffs "cannot establish that Hamden engaged in extreme or outrageous
conduct" and dismissed count 12. That same rationale applies to the identical
allegations as to Olin.
Count 14
Count 14 alleges damages for nuisance, both public and private. Identical
allegations are made against the Town in count 15. While the Town is afforded
some additional protections because of its municipal status, the Court’s reasons for
dismissing count 15 apply also to Olin. See page 29 of the Court’s February 28
opinion as to public nuisance and page 30 as to private nuisance. An additional
ground that the Court relied on in dismissing the nuisance claim as against the Town
is that no nuisance claim could be stated "because the nuisance emanates from
pIaintiffs’ own properties" and not from a neighboring piece of property as the law of

Case 3:03-cv-00945-CFD Document 186 Filed 11/03/2006 Page 3 of 3
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Honorable Christopher F. Droney
November 2, 2006
Page:3
nuisance requires. (See page 32 of the February 22 opinion.) That same rationale
applies to the identical allegations as to Olin.
There being no basis to distinguish the case law and the rationale of the
Court’s February opinion as to these four counts against Olin, Olin believes the
Court did g intend to deny OIin’s motion to dismiss these four counts (counts 5, 9,
11 and 14) by its Order of September 1, 2006.
The Scheduling Of Further Discoveg And Proceedings
The parties have conferred and have reached agreement on a proposed
scheduling order, a copy of which is attached. The parties are amenable to a further
telephonic conference with the Court, should the Court have concerns with respect
to any aspect of the attached proposed order.
ln addition, for planning purposes, the parties seek guidance from the Court
with respect to the class certihcation hearing. Specifically, the parties ask whether
the Court intends to hold an evidentiary hearing on the class certification issues or
prefers to resolve the issues solely through the parties’ briefing. It is Olin’s view that
an evidentiary hearing is appropriate and necessary — perhaps a two day hearing,
with each side having one day to present its case.
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V ’ truly yours?/;(
Michael H. Wetmore
Attachment: Jointly submitted Proposed Scheduling Order
cc: Counsel of Record, via the CIerk’s ECF filing system