2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-31-2006

Mest v. Cabot Corp

Precedential or Non-Precedential: Precedential

Docket No. 04-4457

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Recommended Citation

"Mest v. Cabot Corp" (2006). 2006 Decisions. Paper 988.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 04-4457

 

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

 

Argued November 8, 2005

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

(Opinion Filed May 31, 2006)
1

Fluorosis is a disease caused by fluoride poisoning. It can

cause damage to cows in the form of mottled and blackened teeth,

2

Gary A. Bryant (Argued)

Willcox & Savage, P.C.

One Commercial Place

1800 Bank of America Center

Norfolk, VA 23510

Michael C. Davis

Peter K. Killough

Carter Ledyard & Milburn LLP

1401 Eye Street, NW

Suite 300

Washington, DC 20005

ATTORNEYS FOR APPELLANTS

Neil S. Witkes (Argued)

Manko, Gold, Katcher & Fox LLP

401 City Avenue

Suite 500

Bala Cynwyd, PA 19004

ATTORNEY FOR APPELLEES

____

 OPINION OF THE COURT

 

FUENTES, Circuit Judge.

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

1999.1

 Upon learning the cause of their cows’ symptoms, the
teeth that fall out, poor and decreased milk production and

conception rates, skeletal abnormalities, abortions, stillbirths,

lameness, and death.

2

 On a motion for summary judgment we look at all facts in

the light most favorable to the non-moving party. See Morton Int’l,

Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 680 (3d Cir. 2003).

3

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.2

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,
3

This was not Cabot’s first study on the matter. During the

1960s, Cabot retained Dr. Robert H. Daines to study the possibility

that emissions from the Cabot Facility could be causing fluoride

damage to area crops. The study concluded the fluoride pollution

was a mild problem. (Joint Appendix (“JA”) at 192-94, 2342-49.)

Cabot did not disclose the results of the study to area farmers.

4

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. (Joint Appendix

(“JA”) at 1508.) 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.3

 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
4

After the Davis Reports were submitted to PADER, Cabot

requested that PADER keep the results of the reports confidential.

(JA at 18, 182-83, 206, 213, 2242.) PADER refused the request.

Although it did not release the Davis Reports to the farms

neighboring the Cabot Facility, PADER’s policy was that it would

provide the reports to anyone who requested them. (JA at 1979-96,

2242.)

5

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.”

(Supplemental Appendix (“SA”) at 4-5.) 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.4

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
5

The rumen is the first of four chambers in a cow’s stomach.

It contains various microbes that break down grass and hay,

making it digestible.

6

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.5

 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,
6

 The letter was addressed to “Rd 2, Keyser Rd.,

Schwenksville, PA,” which was not the Mests’ address. (JA at

143, 777.)

7

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.6

(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
7

We exercise plenary review over the District Court’s grant

of summary judgment. See Turner v. Hershey Chocolate U.S., 440

F.3d 604, 611 (3d Cir. 2006). Our review must determine whether

“the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c).

8

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. Mest v. Cabot Corp., No. Civ.A.01-

4943, 2004 WL 945131, at *10 (E.D. Pa. Apr. 29, 2004). 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. Mest v.

Cabot Corp., No.Civ.A. 01-4943, 2004 WL 1102754, at *4-6 (E.D.

Pa. May 14, 2004). The plaintiffs now appeal these rulings. 

II. Discussion

A. Statute of Limitations

Because this is a diversity action, we look to Pennsylvania

law to determine whether the District Court properly dismissed the

plaintiffs’ actions for failure to comply with the statute of

limitations.7

 See Bohus v. Beloff, 950 F.2d 919, 924 (3d Cir.

1991). The statute of limitations for each of the claims alleged in

the plaintiffs’ Second Amended Complaint is two years. 42 Pa.

Cons. Stat. Ann. § 5524. The two-year period begins as soon as

the injury is sustained. Bohus, 950 F.2d at 924. “[L]ack of

knowledge, mistake or misunderstanding do not toll the running of

the statute of limitations.” Pocono Int’l Raceway, Inc. v. Pocono

Produce, Inc., 468 A.2d 468, 471 (Pa. 1983).

Pursuant to this rule, the statute of limitations on the
9

plaintiffs’ claims began to accrue when the plaintiffs’ cows

contracted fluorosis. The Hallowells’ cows began demonstrating

symptoms as early as 1972, while the Mests’ cows began

demonstrating symptoms around 1980. The plaintiffs argue,

however, that the statute of limitations should be tolled until their

cows were actually diagnosed with the disease fluorosis by Krook

in 1999. The plaintiffs cite two bases under Pennsylvania law for

tolling the statute of limitations: 1) the discovery rule, and 2)

Cabot’s alleged fraudulent concealment. We address these

arguments separately.

1. Tolling Pursuant to the Discovery Rule

a. The Discovery Rule 

The discovery rule is designed to “ameliorate the

sometimes-harsh effects of the statute of limitations,” and it is often

applied in medical malpractice and latent disease cases in which

the plaintiff is unable to discover his or her injury until several

years after the tort occurred. Cathcart v. Keene Indus. Insulation,

471 A.2d 493, 500 (Pa. Super. 1984). The discovery rule tolls the

accrual of the statute of limitations when a plaintiff is unable,

“despite the exercise of due diligence, to know of the injury or its

cause.” Pocono Int’l Raceway, 468 A.2d at 471. Under the rule,

even if a plaintiff suffers an injury, the statute of limitations does

not begin to run until “the plaintiff knows, or reasonably should

know, (1) that he has been injured, and (2) that his injury has been

caused by another party’s conduct.” Debiec v. Cabot Corp., 352

F.3d 117, 129 (3d Cir. 2003) (internal quotation marks and citation

omitted). For the statute of limitations to run, a plaintiff need not

know the “exact nature” of his injury, as long as it objectively

appears that the plaintiff “is reasonably charged with the

knowledge that he has an injury caused by another.” Ackler v.

Raymark Indus., Inc., 551 A.2d 291, 293 (Pa. Super. 1988).

As we have explained, the discovery rule focuses not on

“the plaintiff’s actual knowledge, but rather on ‘whether the

knowledge was known, or through the exercise of diligence,

knowable to’” the plaintiff. Bohus, 950 F.2d at 925 (quoting

O’Brien v. Eli Lilly & Co., 668 F.2d 704, 711 (3d Cir. 1981)). A

plaintiff therefore is obligated “to exercise reasonable diligence in

ascertaining the existence of the injury and its cause.” Id. (internal

quotation marks omitted). As soon as the plaintiff either has
10

discovered or, exercising reasonable diligence, should have

discovered the injury and its cause, the statute of limitations begins

to run. Id. Moreover, the plaintiff attempting to apply the

discovery rule bears the burden of demonstrating that he exercised

reasonable diligence in determining the existence and cause of his

injury. Cochran v. GAF Corp., 666 A.2d 245, 249 (Pa. 1995). To

demonstrate reasonable diligence, a plaintiff must “establish[] that

he pursued the cause of his injury with those qualities of attention,

knowledge, intelligence and judgment which society requires of its

members for the protection of their own interests and the interests

of others.” Id. at 250 (internal quotation marks and citations

omitted).

The plaintiffs argue that the statute of limitations should be

tolled by the discovery rule because they were unable to discover

the cause of their injury until 1999 despite their exercise of

reasonable diligence. The plaintiffs concede that they were aware

of their injuries more than two years prior to the date they brought

their claims. However, the plaintiffs argue that, despite their

exercise of reasonable diligence, they were unable to ascertain the

cause of their cows’ symptoms until 1999, and therefore were

unable to determine who caused their injuries. The plaintiffs argue

that under the discovery rule the statute of limitations was therefore

tolled until 1999, when Dr. Krook rendered his diagnosis that their

cows suffered from fluorosis.

To support their argument, the plaintiffs cite Debiec, 352

F.3d at 120-23, in which we addressed when the statute of

limitations begins to run for a plaintiff that has a disease that has

been misdiagnosed. In Debiec, Jane Debiec (“Debiec”) had

allegedly died of berylliosis caused by exposure to beryllium from

the defendants’ plant. Id. at 120-21. When Debiec, suspecting

beryllium as the cause of her illness, consulted a doctor about her

symptoms, her doctor told her that beryllium was probably not to

blame and diagnosed her with another illness. Id. at 121-23. The

defendants argued that Debiec’s reliance on her doctor’s

misdiagnosis, despite her suspicions to the contrary, did not

constitute reasonable diligence as a matter of law. We agreed with

the defendants that a definitive diagnosis of a plaintiff’s injury is

not necessary for the statute of limitations to start running. Id. at

132. We determined, however, that a definitive diagnosis that a

plaintiff does not have a particular disease, and thus that the
11

defendant is not the cause of her injury, may be sufficient in some

cases to overcome the plaintiff’s suspicions that she has a particular

injury. Id. In other words, a negative diagnosis may lead the

plaintiff to reasonably believe that she does not have an injury

caused by the defendant, and thus toll the statute of limitations.

We therefore held that there was a material issue of fact as to

whether Debiec exercised reasonable diligence in determining the

cause of her injury. Id. at 136.

The plaintiffs contend that our holding in Debiec supports

their argument that they exercised reasonable diligence because,

like in Debiec, both the Mests and the Hallowells received

diagnoses indicating that their injuries were not caused by the

defendants. The Mests argue that the 1982 diagnosis from Penn

State was sufficient to relieve any suspicions that Cabot’s fluoride

emissions were the cause of their cows’ symptoms. The Mests

argue that, as in Debiec, this potential misdiagnosis, along with

their other actions, at least raises a material issue of fact as to

whether they exercised reasonable diligence in determining the

cause of their cows’ symptoms. Similarly, the Hallowells argue

that the 1996 New Bolton diagnosis ruling out fluoride as a

potential cause of their cows’ symptoms was, together with the

other actions they took, sufficient to raise a material issue of fact

as to whether they exercised reasonable diligence in ascertaining

the cause of their injury.

b. The District Court Decision

The District Court rejected the plaintiffs’ arguments that the

discovery rule should be applied, concluding that, as a matter of

law, neither the Mests nor the Hallowells had exercised reasonable

diligence in determining the cause of their injury. Although

whether a plaintiff has exercised reasonable diligence is generally

a factual question reserved for the jury, the District Court relied on

the exception we have carved out for situations in which “the facts

are so clear that reasonable minds cannot differ” as to whether the

plaintiffs exercised reasonable diligence. Mest, 2004 WL 945131,

at *5 n.40 (citing Bohus, 950 F.2d at 924; Cochran, 666 A.2d at

248). The District Court found that, taking the evidence in the light

most favorable to the plaintiffs, “no reasonable jury could conclude

that the Mests or Hallowells have satisfied [the] heavy burden” of

demonstrating reasonable diligence. Id. at *5. 
12

 We disagree with this conclusion. In our view, the actions

taken by the Mests and the Hallowells, together with the

misdiagnoses that eliminated fluoride as the cause of their cows’

symptoms, raise a material issue of fact as to whether each party

exercised reasonable diligence in determining the cause of their

injury. We will address the Mests and the Hallowells separately.

c. The Mests

To determine whether the Mests exercised reasonable

diligence, we must examine 1) whether the Mests exercised

reasonable diligence before the 1982 Penn State study, 2) whether,

under Debiec, the Mests were reasonable in relying on the Penn

State study to relieve their suspicions that their injuries were

caused by Cabot, and 3) if so, whether, in light of their reliance on

the Penn State study, they exercised reasonable diligence. 

Before consulting the experts at Penn State, the Mests

consulted several other experts. As described above, upon first

noticing his cows’ symptoms, Mest consulted his veterinarian,

agricultural extension agent, and nutritionist. Mest was told that

the problem was with his cows’ digestive systems, and he was

advised to attempt nutritional solutions. Mest followed this advice

and, when he did not see favorable results, he consulted new

experts at Penn State. After extensive testing, the experts

concluded that fluoride was not the cause of the cows’ illness, but

they were unable to provide a definitive diagnosis as to what the

cause was. We conclude that a reasonable juror could find that the

Mests’ actions leading up to the Penn State study constituted

reasonable diligence.

We next consider the Mests’ contention that they were

reasonable in relying on the Penn State study ruling out fluorosis

to overcome their initial suspicions that fluorosis might be the

cause of their cows’ symptoms. As explained above, in Debiec we

held that, although the statute of limitations begins to run when a

plaintiff suspects he has an injury caused by another, a negative

diagnosis ruling out the speculative injury may be sufficient to

overcome that suspicion. Debiec, 352 F.3d at 132. Thus, a

diagnosis ruling out the possibility that the plaintiff’s injury was

caused by another may, in effect, toll the statute of limitations

under the discovery rule because it may lead the plaintiff to

reasonably believe that his injury was not caused by the defendant.
13

The plaintiffs argue that, under Debiec, the Penn State study may

have led them to reasonably believe that their cows did not suffer

from fluorosis caused by the Cabot Facility. Therefore, the

plaintiffs argue, there is at least a material issue of fact as to

whether the Mests exercised reasonable diligence in ascertaining

the cause of their injury after they received this diagnosis. 

We agree with the plaintiffs. Here, as in Debiec, the Mests

noticed their injury and suspected that the defendants’ actions were

to blame. As in Debiec, the Mests sought the advice of medical

experts, who, after performing tests, assured the Mests that the

suspected culprit was not the cause of the cows’ symptoms. As

explained above, the Mests allege that they never received the

subsequent letter from Penn State notifying them that fluoride

might be the cause of future problems, and there is evidence in the

record that this letter was not correctly addressed to them. (JA at

143, 777, 2006, 2172.) Viewing the facts in the light most

favorable to the plaintiffs, we accept as true the Mests’ contention

that they never received this letter and that they were therefore left

with the diagnosis that fluoride was not the cause of their cows’

symptoms. A reasonable juror could find that the plaintiffs acted

reasonably in turning their inquiry elsewhere. 

We find unconvincing the distinctions the District Court

drew between this case and Debiec. The District Court noted that

Debiec’s reliance on her personal physician’s diagnosis was

inherently more reasonable than the plaintiffs’ reliance on the

diagnoses of veterinarians or scientists because a personal

physician has a stronger relationship of trust with a patient than a

veterinarian or scientist has with a farmer. Mest, 2004 WL

945131, at *7. The distinction between a patient’s relationship

with her doctor and a farmer’s relationship with a veterinarian or

scientist is irrelevant for the purposes of demonstrating reasonable

reliance under Debiec where, we held, the reliance was reasonable

“as long as the plaintiff retains confidence in the doctor’s

professional abilities.” Debiec, 352 F.3d at 132. In the context of

this case, a veterinarian or animal scientist plays the same role as

a doctor by using professional medical and scientific expertise to

interpret symptoms and diagnose a cause. In fact, farmers arguably

rely more on the professional abilities of veterinarians and animal

scientists than patients rely on their doctors because farmers can

only observe the objective symptoms of their animals and must rely
8

 Moreover, the District Court’s reliance on the close and

lengthy relationship between patients and doctors would exclude

those patients who do not have the opportunity to form such a

relationship with a doctor. Patients do not always form a long-term

and close relationship with specialist doctors in particular due to,

for example, the fact that patients may seldom need to see

specialists or lack adequate insurance coverage to see them

regularly. Yet, because of their expertise, these specialists are the

very doctors in whom patients must often place the most trust. The

District Court’s reasoning would appear to find this trust inherently

unreasonable, a conclusion that we cannot support.

14

on veterinarians and animal scientists to interpret those objective

symptoms, whereas human patients know what they are

experiencing and can describe it to their doctors.8

We also disagree with the District Court’s finding that

Debiec is inapplicable to this case because here there was no

definitive diagnosis of the cows’ illness. The important point in

Debiec was not that the doctor diagnosed the wrong disease, but

that the doctor ruled out the actual disease that would have

implicated the defendant. See Debiec, 352 F.3d at 132 (stating that

statute of limitations may be tolled where “a doctor affirmatively

tells a claimant that she does not have a certain disease and

therefore that the defendant was not the cause of her injury”). 

The District Court also distinguished this case from Debiec

by noting that the Mest herd involved numerous different cows

throughout the period the herd demonstrated symptoms, and

therefore the Mests could not have reasonably relied on a negative

diagnosis at one particular time. The fact that the herd consisted of

different cows with the same symptoms throughout the years after

the 1982 negative diagnosis does not imply that the Mests were

unreasonable in continuing to believe that fluoride was not the

cause of the cows’ symptoms. A reasonable juror could conclude

that the Mests made the fair assumption that, because their new

cows showed symptoms identical to those of their old cows, there

existed a common cause to these symptoms. Such a reasonable

juror also could conclude that, having ruled out fluoride as the

cause, the Mests reasonably directed their search toward other

chronic problems on the farm that might have caused these
15

symptoms.

The District Court also appears to have found the Mests’

reliance on the Penn State study unreasonable because of evidence

that, despite the results of the study, Merrill Mest continued to

suspect his cows had fluorosis. Mest, 2004 WL 945131, at *7.

The District Court based this conclusion on Betty Mest’s

deposition testimony that Merrill told her that there was fluoride

contamination on the property two to three years after the results

of the Penn State test. Id. However, the nature of Betty Mest’s

testimony is in dispute; later in the deposition she corrected herself

and stated that her husband did not make that statement, and that

she had been confused by the question. (JA at 782-86.) While the

credibility of Betty Mest’s retraction may be disputed, on a motion

for summary judgment we must look at all facts in the light most

favorable to the non-moving party. See Morton Int’l, 343 F.3d at

680. Therefore, we cannot, as the District Court did, assume that

Merrill Mest suspected fluoride contamination on his farm after the

Penn State study based on Betty Mest’s contradictory testimony.

Given that, under Debiec, the Mests may have reasonably

relied on the 1982 Penn State study to alleviate their suspicions that

their cows had fluorosis, we consider next whether the Mests’

actions after 1982 constituted reasonable diligence in light of their

reliance on the Penn State study. As we have held, a misdiagnosis

does not relieve a patient of all responsibility in pursuing the cause

of her symptoms, and continued reliance on a misdiagnosis in the

face of contrary evidence may be unreasonable. Bohus, 950 F.2d

at 930 (holding that doctor’s assurancesthat plaintiff does not have

particular injury may toll statute of limitations until that “point in

time when a patient’s own ‘common sense’ should lead her to

conclude that it is no longer reasonable to rely on the assurances of

her doctor”); see also Debiec, 352 F.3d at 131-32 (citing Bohus).

 Given that the Mests did not receive a definitive diagnosis and

continued to experience problems with their herd, they would not

have exercised reasonable diligence had they simply ended their

inquiry after the 1982 Penn State study. 

The Mests, however, did not end their inquiry with the Penn

State study. On the contrary, Mest continued to consult his

nutritionist, veterinarian, and agricultural extension agent on a

weekly or monthly basis to determine the cause of the symptoms,
16

and he routinely tested the cows for infections. He sought help

twice from a state laboratory. He had his water and feed tested by

both PADER and the EPA. This careful investigation demonstrates

that the Mests continued to exercise what a reasonable juror might

determine to be reasonable diligence in light of the Penn State

study up until the 1999 diagnosis of fluorosis.

In sum, we hold that a material issue of fact exists as to

whether the Mests exercised reasonable diligence sufficient to toll

the statute of limitations under the discovery rule until the 1999

diagnosis by Dr. Krook. 

d. The Hallowells

We disagree with the District Court’s finding that the

Hallowells conducted little or no investigation into their cows’

symptoms between 1972 and 1996. As described above, the

Hallowells consulted dairy farm specialists, including

veterinarians, nutritionists, breeders, and an agricultural extension

agent. Suspecting radiation poisoning, Hallowell administered

iodine to his cows. Upon the advice of nutritionists, the Hallowells

altered the cows’ nutritional program. Upon the advice that the

problem might be chemical, they administered chemicals tests.

The Hallowells contacted PADER and sent blood samples to

experts at Michigan State University. The Hallowells installed a

new air ventilation system and, upon the advice of their

veterinarian, a new drinking water system. Given these numerous

and varied efforts, a reasonable juror could conclude that the

Hallowells exercised reasonable diligence to determine the cause

of their cows’ symptoms.

We also find that the 1996 New Bolton study may have lead

the Hallowells to reasonably conclude that fluorosis was not the

cause of their cows’ symptoms. Like the Mests, the Hallowells

noticed their injury and sought the advice of medical experts, who,

after performing tests, assured the Hallowells that fluoride was not

to blame. Therefore, for the reasons explained above, there is a

material fact issue as to whether the 1996 New Bolton study led the

Hallowells to reasonably believe that the defendants were not the

cause of their injury.

Given that, under Debiec, the Hallowells may have

reasonably relied on the 1996 New Bolton study, we next consider
17

whether the Hallowells’ actions after the New Bolton study

constituted reasonable diligence. As we previously stated,

continued reliance on a misdiagnosis in the face of contrary

evidence may be considered unreasonable as a matter of law. See

Bohus, 950 F.2d at 930; Debiec, 352 F.3d at 132. Here, however,

when their cows’ symptoms did not subside despite the New

Bolton Center’s advice, the Hallowells continued to investigate

their cows’ illness by consulting the EPA. The EPA’s tests – like

those of the New Bolton Center – concluded that the cause was

farm-specific and not environmental. Thus, until the 1999

diagnosis by GreenWatch, the Hallowells made continued efforts,

which only confirmed the New Bolton study’s conclusion that the

cause was farm-specific and not caused by Cabot. Therefore, a

reasonable juror could certainly find that the Hallowells exercised

reasonable diligence following the 1996 New Bolton study.

We also disagree with the District Court that the Hallowells

did not exercise reasonable diligence as a matter of law because of

their failure to obtain the Davis Reports. Both the Hallowells and

the Mests contacted PADER regarding their problems and were not

told of the reports. Furthermore, not one of the experts the

Hallowells and the Mests consulted found the reports until

GreenWatch’s investigation in 1999. These circumstances, we

believe, raise at least a material issue of fact as to how easily these

reports could have been obtained and whether reasonable diligence

required the Hallowells to obtain them.

In sum, we hold that a material issue of fact exists as to

whether the Hallowells exercised reasonable diligence sufficient to

toll the statute of limitations under the discovery rule. 

2. Tolling Due to Cabot’s Alleged Fraudulent Concealment

The plaintiffs also argue that the statute of limitations should

be tolled because Cabot fraudulently concealed the cause of the

plaintiffs’ injury. Pennsylvania’s fraudulent concealment doctrine

tolls the statute of limitations where “through fraud or concealment

the defendant causes the plaintiff to relax vigilance or deviate from

the right of inquiry.” Ciccarelli v. Carey Canadian Mines, Ltd.,

757 F.2d 548, 556 (3d Cir. 1985). The plaintiffs allege that, during

the Hallowells’ discussions with representatives of the Cabot

Facility in the 1970s and 1996, Cabot concealed its knowledge

about potential fluoride contamination and misled the Hallowells
18

through its assurances that fluoride from the Cabot Facility could

not be the cause of their cows’ injuries. Specifically, the

Hallowells allege that Cabot told them that there was no danger

from the Cabot Facility, that Cabot monitored its 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 the Hallowells’ cows. (JA at 448.) The plaintiffs argue that,

because Cabot knew of the Davis Reports when it made these

misrepresentations, its actions constitute fraudulent concealment

sufficient to toll the statute of limitations. 

The District Court rejected this argument, holding that it

was unreasonable for the plaintiffs to rely on any statements made

by Cabot. Like the discovery rule, the fraudulent concealment

doctrine does not toll the statute of limitations where the plaintiff

knew or should have known of his claim despite the defendant’s

misrepresentation or omission. Bohus, 950 F.2d at 925-26. Where

common sense would lead the plaintiff to question a

misrepresentation, the plaintiff cannot reasonably rely on that

misrepresentation. Id. at 925. The District Court held that, here,

“it was not reasonable for Plaintiffs to rely on the statements of a

company they suspected of poisoning their cow herds” and that “it

was unreasonable for Plaintiffs to continue to rely on those

statements when their cows continued to have problems.” Mest,

2004 WL 945131 at *9.

In our view, whether Cabot’s assurances caused the

Hallowells to reasonably believe that their problems were not

caused by Cabot is an issue best decided by a fact-finder.

Generally, where reasonable minds can disagree, questions of

whether fraudulent remarks were made and whether the plaintiff

was reasonable in relying on them or continuing to rely on them are

left to the jury. See Fine v. Checcio, 870 A.2d 850, 862 (Pa. 2005)

(question of what statements were actually made by defendant was

best answered by jury); Drelles v. Mfrs. Life Ins. Co., 881 A.2d

822, 832 n.6 (Pa. Super. 2005) (“[I]t is for the jury to say whether

fraudulent remarks actually were made.”); Crown Cork & Seal Co.

v. Montgomery, McCracken, Walker & Rhoads, LLP, No. 03185,

2003 WL 23120185, at *3 (Pa. Com. Pl. 2003) (whether plaintiff

reasonably relied on defendants’ allegedly false statements was

question of fact best decided by jury). We conclude that rational

jurors could find that it was reasonable for the Hallowells to rely on
19

the statements made by Cabot.

However, we note that the Mests may not assert the doctrine

of fraudulent concealment to toll the statute of limitations. The

record on appeal does not disclose any communication between the

Mests and Cabot or that Cabot made potentially misleading

statements to the Mests as it did to the Hallowells. Under the

doctrine of fraudulent concealment, “[t]here must be an affirmative

and independent act of concealment that would divert or mislead

the plaintiff from discovering the injury.” Bohus, 950 F.2d at 925.

Silence can constitute fraud only where there is an affirmative duty

to disclose because of a fiduciary relationship between the parties

or a similar relationship of trust and confidence. Chiarella v.

United States, 445 U.S. 222, 227-28 (1980); Sevin v. Kelshaw, 611

A.2d 1232, 1236 (Pa. Super. 1992); Smith v. Renaut, 564 A.2d

188, 192 (Pa. Super. 1989). 

We disagree with the plaintiffs’ argument that Cabot had a

duty to disclose the existence of the Davis Reports to the Mests.

This argument implies that Cabot had an affirmative duty to

disclose to all area farmers, without their inquiry, the existence of

public reports that raised possible concerns for the farmers. The

plaintiffs offer no precedent suggesting such a duty; rather, they

cite cases regarding the duty of care in a negligence action. See,

e.g., Miller v. Group Voyagers, Inc., 912 F. Supp. 164, 167 (E.D.

Pa. 1996); Snyder v. ISC Alloys, Ltd., 772 F. Supp. 244, 253

(W.D. Pa. 1991); Venzel v. Valley Camp Coal Co., 156 A. 240,

242 (Pa. Super. 1931). These cases do not demonstrate that a

relationship of trust existed between Cabot and the Mests such that

Cabot’s failure to disclose the existence of the Davis Reports

constituted fraudulent concealment. Moreover, the plaintiffs do not

define the parameters of this alleged duty, such as which area

farmers were owed this duty and how long this duty persisted after

the Davis Reports were published as, presumably, new farmers

moved into the area. We cannot find that such a sweeping duty

exists under Pennsylvania law. 

B. Fraud Claims

The plaintiffs assert claims for fraud and fraudulent

misrepresentation and concealment. These claims are the same

claims of fraud that they argue tolled the statute of limitations. The

District Court dismissed these claims on the same grounds it
20

dismissed the claims of tolling based on fraud; specifically, it found

that the plaintiffs could not have reasonably relied on Cabot’s

statements. Mest, 2004 WL 1102754, at *6. 

For the reasons explained above, we hold that material

issues of fact exist as to whether Cabot made fraudulent statements

and whether the Hallowells reasonably relied on such statements.

Because, however, the Mests do not allege that Cabot made any

statements or misrepresentations to them, we affirm the District

Court’s grant of summary judgment with regard to the Mests’

claims of fraud and fraudulent concealment and misrepresentation.

C. Negligence Per Se Claims

The plaintiffs argue that the District Court erred in granting

summary judgment dismissing their claim of negligence per se

based on Cabot’s alleged violation of Section 4013.6(c) of the

Pennsylvania Air Pollution Control Act (“PAPCA”), 35 Pa. Stat.

Ann. § 4001 et seq. Under the doctrine of negligence per se, a

violation of a statute may be grounds for finding that a defendant

is per se liable. To assert a claim for negligence per se, the

plaintiffs must demonstrate that: 1) the statute or regulation clearly

applies to the conduct of the defendant; 2) the defendant violated

the statute or regulation; 3) the violation of the statute proximately

caused the plaintiff's injuries; and 4) the statute’s purpose is, at

least in part, to protect the interest of the plaintiff individually, as

opposed to the public. See Wagner v. Anzon, Inc., 684 A.2d 570,

574 (Pa. Super. 1996).

We agree with the District Court that the plaintiffs’ claim

must fail because the plaintiffs cannot demonstrate that the statute’s

purpose is to protect the interest of the plaintiffs in particular as

opposed to the general public. In Wagner, the Pennsylvania

Superior Court rejected a similar negligence per se claim brought

by neighbors against a nearby factory that they alleged had violated

the Philadelphia Air Management Code of 1969 (the “Philadelphia

Code”). Id. at 573-75. After reviewing the text and legislative

history of the Philadelphia Code, the Pennsylvania Superior Court

concluded that the statute was “a general environmental protection

statute that has the interests of the City community as a whole at

the heart of its purpose.” Id. at 575. The court also noted that “a

statute governing air quality, by its nature, is directed to the
9

The plaintiffs also cite Goldsborough v. Columbia

Borough, 48 Pa. D. & C. 3d 193 (Pa. Com. Pl. 1988), in which the

Lancaster County Court of Common Pleas held that the PAPCA

allows a cause of action for negligence per se. Id. at 198.

However, we agree with the District Court’s reasoning that

Goldsborough is not dispositive because the Goldsborough opinion

gave no explanation for the court’s conclusion and has never been

cited by another court, and because it is inconsistent with the more

recent Wagner case. Mest, 2004 WL 1102754, at *4 n.18. 

21

population in general.” Id. at 575 n.4. The court held that, as a

general environmental protection statute, the Philadelphia Code’s

purpose was to protect the entire community rather than the

plaintiffs specifically. Id. at 575.

We conclude that, like the Philadelphia Code, the PAPCA

is an environmental statute governing air quality with the purpose

of protecting the general public rather than the plaintiffs in

particular. The text of the PAPCA states that it is intended to

protect the “public health, safety and well-being [of Pennsylvania]

citizens.” 35 Pa. Stat. Ann. § 4002(a). The plaintiffs note that the

statute also states that it is intended to prevent “injury to plant and

animal life and to property” and to encourage the “development,

attraction and expansion of industry, commerce and agriculture.”9

Id. However, these broad statements do not establish an intent to

protect the plaintiffs as dairy farmers specifically rather than the

population of Pennsylvania in general. Similarly, in Wagner,

references to the “health and welfare” of Philadelphia inhabitants

and the protection of “recreation, commerce and individual

activity” in the statute did not indicate a specific intention to

protect the plaintiffs. Wagner, 684 A.2d at 574-75.

Because the plaintiffs cannot demonstrate that the PAPCA

was intended to protect them specifically as opposed to the general

population, summary judgment dismissing their claim for

negligence per se is appropriate.

D. Emotional Distress Damages

The plaintiffs argue that the District Court erred in finding
10 The plaintiffs cite Little v. York County Earned Income

Tax Bureau, 481 A.2d 1194 (Pa. Super. 1984), for the proposition

that a plaintiff may recover emotional distress damages under

Pennsylvania law for negligence even if the plaintiff suffers no

physical injury. In Little, the Superior Court of Pennsylvania

allowed the plaintiff to collect damages for “humiliation,

degradation, and mental anguish” where the plaintiff’s reliance on

the negligent misrepresentations of the defendant, a tax collection

service, to the plaintiff regarding her local wage tax was the

proximate cause of her being arrested and jailed for failure to pay

taxes. Id. at 1199, 1202. We note, however, that the Little holding

was explicitly limited to the facts of the case, which are quite

22

that they were not entitled to emotional distress damages for any of

their claims. The plaintiffs allege that Cabot’s actions injured their

cows and their livelihood, causing them to experience decades of

emotional distress in the form of worry, headaches, chest pains,

arm numbness, and lack of sleep. The District Court found that,

under Pennsylvania law, a plaintiff may not recover emotional

distress damages absent actual or potential physical injury caused

by the defendant. Mest, 2004 WL 1102754, at *5-6. The District

Court found that, because the plaintiffs allege no physical injury,

they may not recover emotional distress damages. Id.

We agree with the District Court that Pennsylvania law

permits recovery for emotional distress as a result of the

defendant’s negligence only where the claim includes physical

injury or in limited circumstances where the plaintiff witnesses

injury to another. See Armstrong v. Paoli Mem’l Hosp., 633 A.2d

605, 609 (Pa. Super. 1993); Houston v. Texaco, Inc., 538 A.2d 502,

506 (Pa. Super. 1988); Tressler v. Priester-Hoover, 31 Pa. D. & C.

4th 73, 75 (Pa. Com. Pl. 1996). Pennsylvania law does not allow

for recovery for emotional distress damages resulting from a

defendant’s negligent injury to property. See Brooks v. Hickman,

570 F. Supp. 619, 619-20 (W.D. Pa. 1983); Houston, 538 A.2d at

506; Tressler, 31 Pa. D. & C. 4th at 75; Casey v. PennsylvaniaAmerican Water Co., 12 Pa. D. & C. 4th 168, 171-73 (Pa. Com. Pl.

1990). Because the plaintiffs’ claims do not fall within these

limitations, the plaintiffs may not recover emotional distress

damages for their claims based in negligence.10
different from those at hand. Id. at 1202. Moreover, the

Pennsylvania Superior Court has subsequently interpreted Little as

a limited exception to the rule that emotional distress damages are

not allowed for claims of negligence where the plaintiff has

suffered no physical injury. See Rolla v. Westmoreland Health

Sys., 651 A.2d 160, 163 & n.2 (Pa. Super. 1994); Houston, 538

A.2d at 504 & n.2.

On the other hand, plaintiffs who allege an intentional tort

may obtain damages for emotional distress even if they have not

suffered physical injury. See, e.g., Papieves v. Lawrence, 263 A.2d

118, 121-22 (Pa. 1970); see also Hackett v. United Airlines, 528

A.2d 971, 974 (Pa. Super. 1987). We therefore conclude that,

under Pennsylvania law, the plaintiffs may recover emotional

distress damages for their claims related to fraud and trespass. See,

e.g., Bobin v. Sammarco, No. Civ. A. 94-5115, 1995 WL 303632,

at *3 (E.D. Pa. May 18, 1995) (allowing emotional distress

damages for fraud under Pennsylvania law); Tran v. Gen. Motors

Acceptance Corp., Civ. A. No. 88-1836, 1989 WL 64564, at *2

(E.D. Pa. Jun. 13, 1989) (allowing emotional distress damages for

trespass under Pennsylvania law); MacGregor v. Mediq Inc., 576

A.2d 1123, 1127 (Pa. Super. 1990). 

III. Conclusion

For the reasons stated above, we will vacate the District

Court’s opinion in part, affirm it in part, and remand the case for

further proceedings consistent with this opinion.