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Cynthia Sauer, et al v. Exelon Generation Co.

August 15, 2011


The opinion of the court was delivered by: Magistrate Judge Nan R. Nolan


Currently before the Court are Plaintiffs' two Motions to Compel additional document production from Defendant Exelon; Defendant UniTech's motion to compel additional interrogatory responses, initial disclosures and document production from Plaintiffs; and a temporal scope of discovery dispute concerning whether Defendants should be required to produce documents going as far back as 1990. For the reasons stated below, Plaintiffs' motions are granted in part and denied in part, and UniTech's motion is granted.


Plaintiffs Cynthia Sauer and Joseph Sauer, individually and as parents and natural guardians of Sarah Sauer, a minor, initiated this lawsuit against Exelon Corporation, Exelon Generation Company, LLC, and UniTech Services Group, Inc. alleging that radioactive discharges from Defendants' facilities caused Sarah Sauer to develop brain cancer.*fn1 (Amended Compl. ¶¶ 6, 9, 11. 17, 21--22, 24--29.) Sarah Sauer was diagnosed with a medulloblastoma in April 2001, approximately three years after her family moved to Grundy County, where Exelon's Dresden Generating Station and UniTech's facility are located. (Id. ¶¶ 4--6, 17, 21, 23.) UniTech has contracts with Exelon to launder contaminated materials at its Morris, Illinois, facility. (Id. ¶¶ 23, 27.) Plaintiffs claim that radioactive releases from the Dresden nuclear power plant and discharges from UniTech's laundry facility traveled through the groundwater and exposed Sarah to radiation sufficient to cause her brain tumor. (See id. ¶¶ 9, 11, 24--29, 34--35, 47.) Specifically, Plaintiffs plead causes of action for: (1) violation of the Price-Anderson Act; (2) negligence; (3) negligence per se; (4) strict liability; (5) private nuisance; (6) public nuisance; (7) willful and wonton infliction of emotional distress; (8) negligent infliction of emotional distress; and (9) fraud/concert of action/conspiracy. (Id. ¶¶ 59--113.)

This case was initiated by the filing of a Writ of Summons in the Court of Common Pleas in Philadelphia County, Pennsylvania, on August 26, 2009. (Am. Compl. ¶ 10.) On May 27, 2010, the case was removed to the Northern District of Illinois. The parties began serving discovery requests in October 2010, and on February 28, 2011, the case was referred to this Court for discovery supervision and the resolution of all discovery disputes.


A. Scope of Discovery

The parties disagree on the appropriate temporal limits for discovery. Defendants contend that discovery should be a limited to a 1996--2004 time period. They argue that this period is sufficient because it encompasses: (1) more than two and one-half years before Plaintiffs moved to Grundy County; (2) three years after Sarah Sauer's diagnosis; and (3) the entire time Plaintiffs lived in Grundy County.

Plaintiffs have proposed a 1990--2004 timeframe. They contend that this time period is appropriate because: (1) the Amended Complaint alleges that Sarah Sauer was impacted by releases at the Dresden facility dating back to at least 1994; (2) their expert has attested that radioactive materials persist for long periods of time in groundwater following a release and he needs historical data going back to the early 1990s to determine the impact Dresden's impact had on Sarah Sauer; (3) documents produced so far refer to earlier releases being relevant to assessing the Dresden's impact on the residential communities surrounding the facility; (4) earlier releases go to the question of knowledge on the part of Exelon and whether it acted appropriately once contaminated groundwater was discovered; and (5) earlier releases go to the question of credibility and whether Exelon has always been truthful in its disclosures about environmental releases.

Exelon argues that Plaintiffs' expert's conclusions are speculative. It contends the expert's opinion that he needs historical data is "not based on any evidence of actual exposures to Sarah Sauer" and "fails to identify any basis for concluding that groundwater at Dresden could have migrated miles away to the locations where Ms. Sauer allegedly was exposed." Exelon's objections are premature. Fact discovery is ongoing and does not conclude until January 2012; expert discovery concludes in June 2012. Exelon's arguments are better suited to summary judgment or at trial. At this point in the proceedings, the expert's observations ably assist the Court in determining the temporal scope of discovery.

After carefully considering the issue, the Court concludes that the proper scope of discovery in this matter should include the 1990--2004 timeframe. See Corley v. Rosewood Care Ctr., Inc., 142 F.3d 1041, 1052 (7th Cir. 1998) ("District judges enjoy broad discretion . . . in delimiting the scope of discovery in a given case."); Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 320 (7th Cir. 2003) (observing that district court has discretion to determine appropriate time period for discovery); Haynes v. Dart, 2010 WL 140387, at *3 (N.D. Ill. Jan. 11, 2010) ("A district court has discretion to determine the scope of discovery and to resolve discovery disputes."). Given Plaintiffs' expert's statement that contamination from the Dresden facility can persist for long periods of time, it is reasonably likely that releases dating back to the early 1990s could be relevant to Plaintiffs' claims or could lead to the discovery of admissible evidence. See Manual for Complex Litigation, Fourth § 34.28, at 674 (observing that in CERCLA cases, "relevant evidence may be decades old"). Further, the drafters of the Price-Anderson Amendments Act of 1998 contemplated that, on occasion, discovery going back 20 years or more would be necessary. See Trisha T. Pritkin, Hanford: Where Traditional Common Law Fails, 30 Gonz. L. Rev. 523, 543--44 (1994--1995) ("Prior to the Price-Anderson Amendments Act of 1988, the three-year post-discovery statute of limitations period of the Price-Anderson discovery rule contained a maximum limitations period of 20 years from the date of defendant's tortious conduct. The 1988 Act eliminated the maximum limitations period altogether. This change justifiably allows for passage of extended latency periods following radiation exposure. The change also helps to address situations such as that at [the] Hanford [nuclear facility], where plaintiffs did not learn of a potentially compensable cause of action until public disclosures of radiation emissions were made decades after individuals were exposed.") (citation omitted); cf. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 (1978) (observing that a limitations period is often an appropriate guideline for the temporal limits of discovery).

B. Plaintiffs' First Motion to Compel

In their Motion to Compel Responses to Request for Production of Documents Nos. 9, 10 and 11, Plaintiffs seek an order compelling Exelon to produce all documents related to three other lawsuits: Duffin v. Exelon Corp., No. 06 C 1382 (N.D. Ill. filed Mar. 13, 2006); Reeves v. Commonwealth Edison Co., No. 06 C 5540 (N.D. Ill. filed Oct. 11, 2006); and Illinois v. Exelon Corp., No. 06 MR 248 (Will County, Ill. Chancery Div. filed 2006). (See Mot. 1, 5; Reply 1.) All three cases concerned radioactive releases from Exelon's Braidwood Nuclear Power Plant, but Plaintiffs contend that each case also dealt, at least peripherally, with Exelon's Dresden Generating Station. (Mot. 1--3.) Plaintiffs argue that these documents are relevant because the other lawsuits "involve similar claims and can be used to establish a pattern or a habit or routine practice." (Id. 4.)

Exelon contends that the three cases relate "solely to Braidwood Generating Station." (Resp. 1.) It argues that "documents and depositions from the Braidwood lawsuits are [neither] relevant [n]or could lead to the discovery of evidence concerning Sarah Sauer's alleged exposure to radiation from Dresden." (Id. 1--2.) "Documents relating to the operation of Braidwood have no bearing on whether Exelon complied with [its] duty of care in its operation of Dresden." (Id. 2.)

The Federal Rules of Civil Procedure allow parties to "obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). Nevertheless, "requested discovery must be tied to the particular claims at issue in the case." Sykes v. Target Stores, 2002 WL 554505, at *3 (N.D. Ill. Apr. 15, 2002); see Moore v. Morgan Stanley & Co., Inc., 2008 WL 4681942, at *2 (N.D. Ill. May 30, 2008). Under Rule 37, a party may move to compel discovery where another party fails to respond to a discovery request or where the response is evasive or incomplete. Fed. R. Civ. P. 37(a)(3)--(4). "In ruling on motions to compel discovery, courts have consistently adopted a liberal interpretation of the discovery rules." Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006) (citation omitted); see Cannon v. Burge, 2010 WL 3714991, at *1 (N.D. Ill. Sept. 14, 2010) ("The federal discovery rules are liberal in order to assist in trial preparation and settlement."); Bond v. Utreras, 585 F.3d 1061, 1075 (7th Cir. 2009). "Courts commonly look unfavorably upon significant restrictions placed upon the discovery process" and the "burden rests upon the objecting party to show why a particular discovery request is improper." Kodish, 235 F.R.D. at 450; accord Cannon, 2010 WL 3714991, at *1. As with all discovery matters, the Court has broad discretion whether to compel discovery. See Kodish, 235 F.R.D. at 450.

Here, Plaintiffs are entitled to the documents from the other lawsuits to the extent they are relevant to their claims in this case. Clearly, documents produced in prior nuclear contamination cases that refer to the Dresden facility during the relevant time period are "reasonably calculated to lead to the discovery of admissible evidence." See Fed. R. Civ. P. 26(b)(1). Thus, documents exchanged in the Reeves, Duffin, and Illinois v. Exelon cases that relate to contamination at Dresden, assess groundwater movement around Dresden, or that refer to activities at Dresden during the relevant time period are sufficiently related to the claims at issue in this case to warrant production. And Exelon, even while arguing that Plaintiffs' Motion to Compel should be denied in its entirety (Resp. 2), seems to acknowledge that the production in the other lawsuits contain Dresden-related documents, (see id. 10) (explaining that to the extent the prior discovery documents relate to contamination near Dresden, Exelon has already agreed to produce those "categories of documents").

The document requests at issue seek documents produced or received by Exelon in the three cases "relating and/or regarding air, soil, surface water, and groundwater contamination near [the Dresden] facility." (Mot. Ex. A at 1, 5--6.) Plaintiffs define "near" as within four miles of the Dresden facility. (Id. Ex. A at 4.) Exelon ar- gues that "no foundation or basis has been articulated for such an arbitrary distance" and objects to this definition as unreasonably broad, vague, burdensome, and oppressive. (Id. Ex. E at 6, 9--11.) The Court agrees. It would be nearly impossible to review all the documents produced or received in the three cases to determine if they relate to contamination within four miles of the Dresden facility. Accordingly, the ...

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