IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60708

KENESHA L. BARNES, ON BEHALF OF THE ESTATE OF SHERRIE

BARNES, DECEASED

Plaintiff-Appellee-Cross-Appellant

v.

KOPPERS INC.; BEAZER EAST INC., FORMERLY KNOWN AS BEAZER

MATERIALS AND SERVICES

Defendants-Appellants-Cross-Appellants

Appeals from the United States District Court 

for the Northern District of Mississippi

Before JONES, Chief Judge, and GARWOOD and JOLLY, Circuit Judges.

EDITH H. JONES:

Kenesha Barnes (“Barnes”) filed suit against Koppers, Inc. (“Koppers”) and

Beazer East, Inc. (“Beazer”), alleging that the companies’ operations of a wood

treatment plant in Grenada, Mississippi, released environmental contamination

that caused her mother’s death from breast cancer. Koppers and Beazer moved

unsuccessfully for summary judgment on the ground that Barnes’s claims were

barred by Mississippi’s general three-year statute of limitations. MISS. CODE

ANN. § 15-1-49. After a three-week trial, the jury found Koppers and Beazer

liable on Barnes’s negligence claim. Because the state limitations statute bars

Barnes’s claim and CERCLA’s provision tolling limitations, 42 U.S.C. § 9658,

does not preempt the state statute in this case, we REVERSE.

United States Court of Appeals

Fifth Circuit

F I L E D

June 30, 2008

Charles R. Fulbruge III

Clerk
No. 06-60708

2

I. BACKGROUND

Koppers and Beazer have at various times owned and operated a wood

treatment facility (“the Plant”), which treats railroad crossties and utility poles

with creosote, creosote mixtures, and pentachlorophenol.

On May 18, 2003, Kenesha Barnes filed a wrongful death suit against

Koppers and Beazer, alleging that her mother developed breast cancer because

she was exposed to dioxins and polycyclic aromatic hydrocarbons (“PAHs”)

emitted from the Plant. Kenesha Barnes’s mother, Sherrie Barnes, was

diagnosed with breast cancer on June 13, 1997, and died from the disease on

September 7, 1998. She had lived throughout her life in a home adjacent to the

Plant.

Before trial, the district court entered an order granting the companies’

motion for summary judgment on various state tort claims, but it rejected their

argument that Barnes’s remaining claims, for conspiracy and negligence, were

barred by the applicable three-year statute of limitations. The jury found

Koppers and Beazer liable solely on Barnes’s negligence claim and awarded

Barnes $845,000 in compensatory damages. The district court reduced the

award to $785,000 and ordered the parties to bear their own costs. This appeal

followed.

II. DISCUSSION

Apart from the court’s rejection of a statute of limitations bar, Beazer

challenges numerous rulings by the district court, including its decisions

concerning the admission of expert testimony and its unprecedented order

transferring any future trials in the case to another division within the Northern

District of Mississippi. Koppers joins Beazer’s appeal and also contends that the

district court erred in holding it liable, without any evidentiary inquiry, as a

successor-in-interest to Beazer. Barnes cross-appeals the district court’s order

to bear her own court costs. Many of these issues raise troubling questions
No. 06-60708

3

about the handling of this case, which is the first to be tried in an “inventory” of

several hundred similar suits against Beazer and Koppers pending on the

district court’s docket. We cannot reach most of these issues, however, because

Barnes’s claim is barred by limitations.

A.

Most Mississippi tort claims are governed by a three-year statute of

limitations. See MISS. CODE ANN. § 15-1-49. The key issue here is when the

limitations period commenced. The parties agree that § 15-1-49(2), the “latent

discovery rule,” applies in this case. Subsection (2) states:

In actions for which no other period of limitation is prescribed and

which involve latent injury or disease, the cause of action does not

accrue until the plaintiff has discovered, or by reasonable diligence

should have discovered, the injury.”

MISS. CODE ANN. § 15-1-49(2) (emphasis added). Beazer and Koppers contend

thatthe statute of limitations commenced when Barnes’s mother was diagnosed

with breast cancer, and the claims are barred. More than five years elapsed

between Sherrie Barnes’s diagnosis in 1997 and the filing ofthis lawsuitin 2003;

more than four years elapsed between Sherrie Barnes’s death and the initiation

of the lawsuit. Barnes contends, however, that the suit was timely filed within

a year from the date that her attorney’s investigation first uncovered the alleged

link between Plant emissions and her mother’s cancer.

The district court agreed with Barnes and held thatthe cause of action did

not accrue until Barnes knew of both the injury and its cause. This court

reviews de novo the district court’s determination of state law. Am. Waste &

Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir.

1991).

We conclude that the district court erred in adopting Barnes’s statutory

interpretation. The firmest rebuke to this interpretation is the language of the

statute itself, which refers only to discovery of the injury, not to discovery of its
No. 06-60708

1 MISS. CODE ANN. § 15-1-36 (“ . . . no claim in tort may be brought against a licensed

physician . . . unless it is filed within two (2) years from the date the alleged act, omission or

neglect shall or with reasonable diligence might have been first known or discovered. . . .”).

4

cause. The latent discovery statute differs markedly from Mississippi’s

limitations provision governing medical malpractice suits, which commences

only when the negligent act “shall or with reasonable diligence might have been

first known or discovered. . . .”1 That the medical malpractice provision refers

to discovery ofthe “neglect” as opposed to the “injury” evidences the legislature’s

ability to craft a discovery rule like that advocated by Barnes, and reinforces the

limited scope of the latent discovery provision.

The Mississippi Supreme Court explicitly acknowledged the injury-based

provision in Owens-Illinois, Inc. v. Edwards, and rejected, albeit in dicta, the

proposition that a plaintiff must discover the cause of her injury before a cause

of action accrues. 573 So. 2d 704, 709 (Miss. 1990). In Edwards, the plaintiffs

filed suit against the defendants for injuries allegedly attributable to asbestos

exposure. The Mississippi Supreme Court stated:

The cause of action accrues and the limitations period begins to run

when the plaintiff can reasonably be held to have knowledge of the

injury or disease. . . . Though the cause of the injury and the

causative relationship between the injury and the injurious act or

product may also be ascertainable on this date, these factors are not

applicable under § 15-1-49(2), as they are under MISS. CODE ANN.

§ 15-1-36.

Id. (emphasis added).

Barnes cites subsequent decisions by the Mississippi Supreme Court, but

none is inconsistent with the court’s specific statement in Edwards. In Schiro

v. American Tobacco Co., 611 So. 2d 962, 965 (Miss. 1992), the court explained

that a cause of action based upon a latent disease accrues when the injured

party becomes aware of her injury — in that case, when the plaintiff was

diagnosed with lung cancer. The plaintiff’s mere belief that she might have
No. 06-60708

5

cancer was insufficient to start the statute of limitations. Id. The court noted

that:

[t]he contention that Schiro should have brought suit . . . after

discovery of the mass also fails. It could be argued that at this

point, Schiro was aware of her injury. However, as aforementioned,

Schiro did not actually know that she had cancer, an injury

connected with smoking.

Id. Although the court observed that cancer is “an injury connected with

smoking,” it repeatedly stated that the plaintiff’s cause of action accrued when

she was diagnosed with cancer. Id. The court did not emphasize or even discuss

the time at which the plaintiff learned her cancer was attributable to smoking.

Schiro is consistent with Edwards; the final phrase quoted above does not

announce a different discovery rule. Barnes’s reliance on Sarris v. Smith,

782 So. 2d 721 (Miss. 2001) is also misplaced. In Sarris, the Mississippi

Supreme Court held, “. . . the statute of limitations can be tolled until a plaintiff

gains actual knowledge of the defendant’s negligent conduct even if that

knowledge is not gained until years after the death that is the basis for the suit.”

Id. at 724 (applying MISS. CODE. ANN. § 15-1-36). Sarris, however, is a medical

malpractice case interpreting § 15-1-36, the medical malpractice statute of

limitations. See Sutherland v. Estate of Ritter, 959 So. 2d 1004, 1008-09 (Miss.

2007). Thus, the Mississippi Supreme Court has not departed from its statement in Edwards.

Cases decided by the Mississippi Court of Appeals also do not undermine

the clear statement of the Edwards court. Barnes relies on May v. Pulmosan

Safety Equipment Corp., but whether the plaintiff had knowledge of causation

was not there at issue. 948 So. 2d 483, 485 (Miss. App. 2007) (citing Sarris, 782

So. 2d at 724). May’s citation to Sarris in any event suggests that the court

conflated the medical malpractice statute of limitations, § 15-1-36, with the

personal injury statute of limitations, § 15-1-49. Likewise, the intermediate
No. 06-60708

2 Our interpretation of § 15-1-49 is consistent with a more analogous, though nonprecedential, decision in Wilbanks v. A.H. Robins Co., Inc., No. 98-60393, 1999 WL 800019,

at *1 (5th Cir. Sept. 15, 1999) (unpublished).

6

court’s confusing divided decision in Cannon v. Mid-South X-Ray Co., 738 So. 2d

274 (Miss. App. 1999), seems to turn more on the date of diagnosis than on the

plaintiff’s discovery of the cause of her injury. Moreover, because neither May

nor Cannon offers any analysis of the above-quoted statement from Edwards,

this court is especially hesitant to attribute to them a holding that seems

irreconcilable with Edwards.

Finally,this court’s decision in Kemp v. G.D. Searle & Co. does not require

a different result. 103 F.3d 405 (5th Cir. 1991). In Kemp, the plaintiff argued

that use of an intrauterine device caused her to develop pelvic inflammatory

disease ("PID") and to become infertile. Id. at 407. Though her claim for PID

was barred under § 15-1-49, the plaintiff argued that her infertility gave rise to

a second cause of action. Id. This court disagreed, holding that "Kemp's injury

was the PID and that the statute of limitations began to run when she knew of

her injury and its cause, not when she later discovered all of the consequences

and complications of the PID." Id. at 410. This language referencing “cause”

was dicta because plaintiff’s knowledge of causation was not at issue.2

In sum,the cases cited by the district court and by Barnes do not overcome

the plain language of the statute itself, which references only the injury, and the

Mississippi Supreme Court’s directive in Edwards. Under § 15-1-49, a cause of

action accrues when the plaintiff has knowledge of the injury, not knowledge of

the injury and its cause. Barnes’s claims are barred under § 15-1-49.

B.

As an alternative to her state law argument, in one paragraph of her brief

comprising two sentences, Barnes makes a federal preemption claim based on

§ 309 of the Comprehensive Environmental Response, Compensation, and
No. 06-60708

7

Liability Act (“CERCLA”), 42 U.S.C. § 9658. Barnes also cited this provision to

the district court, which had no need to consider it. Despite the brevity of her

briefing, the point is not so insufficiently raised as to be waived. See FED. R.

APP. P. 28(a)(9); Atwood v. Union Carbide Corp., 847 F.2d 278, 280 (5th Cir.

1988) (“We liberally construe briefs in determining issues presented for review;

however, issues not raised at all are waived.”).

Section 9658 is a tolling provision that applies to some state-law tort

actions stemming from exposure to hazardous substances. Where applicable,

§ 9658 prevents a state limitations period from commencing until a plaintiff

knows or should know of both her injury and its cause. The relevant portion of

§ 9658 states:

In the case of any action brought under State law for personal

injury, or property damages, which are caused or contributed to by

exposure to any hazardous substance, or pollutant or contaminant,

released into the environment from a facility, if the applicable

limitations period for such action (as specified in the State statute

of limitations or under common law) provides a commencement date

which is earlier than the federally required commencement date,

such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.

42 U.S.C. § 9658(a)(1). The “federally required commencement date” is

the date the plaintiff knew (or reasonably should have known) that

the personal injury or property damages . . . were caused or

contributed to by the hazardous substance or pollutant or

contaminant concerned.

42 U.S.C. § 9658(b)(4). Barnes contends that § 9658 preempts state law in all

toxic tort actions, including this one. Under this construction, Barnes submits

her action was timely filed.

Barnes’s contention necessarily embraces the preemptive scope of § 9658

and its potential application in her case. The preemptive reach of § 9658 is not

clear. Congress enacted § 9658 as part of a bundle of amendments to CERCLA

known as the Superfund Amendments and Reauthorization Act of 1986
No. 06-60708

3 For a reading of § 9658 as broadly preemptive, see Kowalski v. Goodyear Tire &

Rubber Co., 841 F. Supp. 104, 108 (W.D.N.Y. 1994); see also O’Connor v. Boeing N. Am., Inc.,

311 F.3d 1139, 1149 (9th Cir. 2002) (“Section 9658 applies to actions that assert state law

claims without an accompanying CERCLA claim.”). For a more limited construction, see

Covalt v. Carey Canada, Inc., 860 F.2d 1434, 1437-38 (7th Cir. 1988); First United Methodist

Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 866-68 (4th Cir. 1989); and Becton v.

Rhone-Poulenc, Inc., 706 So. 2d 1134, 1137-41 (Ala. 1997).

4 See, e.g., 42 U.S.C. § 9601(9), (14), (22).

8

(“SARA”). PUB. L. NO. 99-499, 100 STAT. 1613. Section 9658 was a compromise

provision; it initially appeared only in the House version of the bill, and was

adopted in conference with little discussion on the legislative record. Since its

passage, the Congressional intent behind the proper scope of § 9658 preemption

has been the subject of much debate among the federal courts.3 Barnes cites one

case, but her briefing ignores the debate.

As the party asserting federal preemption of state law, however, Barnes

bears the burden of persuasion. AT&T Corp. v. Pub. Util. Comm’n of Texas,

373 F.3d 641, 645 (5th Cir. 2004); Silkwood v. Kerr-McGee Corp., 464 U.S. 238,

255, 104 S. Ct. 615, 625 (1984). Under well-settled law, Barnes must persuade

the court that Congress intended § 9658, read within the entire context of

CERCLA, fully to preempt state tolling provisions, and she must overcome the

presumption against preemption on this subject involving historic state police

powers. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 2250 (1996).

No doubt Congress intended to preempt less favorable state law tolling

provisions for certain toxic tort cases. The question raised here is the intended

scope of such preemption. If the extent of Congress’s preemptive intent is

unclear, the presumption favors a finding of limited preemption. Id.

The terms used in § 9658 to describe the scope of preemption are those

used throughout CERCLA. Each of these — “hazardous substance,” “release,”

“facility” — has a specific statutory definition.4 The CERCLA definitions are
No. 06-60708

5For example,the definition of “hazardous substance” expressly excludes petroleum and

several forms of natural gas. 42 U.S.C. § 9601(14). Likewise, structural asbestos has been

held to be outside the scope of CERCLA. U.S. Gypsum, 882 F.2d at 866-68; 42 U.S.C.

§ 9604(a)(3)(B). Moreover, the liability provisions of CERCLA § 9607 disallow a contribution

action stemming from any “federally permitted release,” which is defined as a discharge

pursuant to a permit issued under any of a variety of federal environmental laws. 42 U.S.C.

§§ 9607(j); 9601(10).

9

extremely broad, but even CERCLA has exclusions from its coverage.5

Moreover, the statute’s regime of notification, remediation and shared cleanup

liability has been characterized by this court as pertaining to “abandoned,” not

“existing” sites. See Cox v. City of Dallas, 256 F.3d 281, 296 n.25 (citing O’Reilly,

et al., RCRA and Superfund § 2.02, at 2-3 (stating that “CERCLA applies to

abandoned sites, and RCRA deals with today’s generators”)). Thus, it might be

argued that § 9658 is confined to claims arising from hazardous waste sites

where CERCLA enforcement actions have been taken or pursued, whether by

government or private parties. The contrary position, that § 9658 is allpreemptive of less generous state law toxic tort tolling provisions, nevertheless

has support. O’Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1149 (9th Cir.

2002) (“Section 9658 applies to actions that assert state law claims without an

accompanying CERCLA claim.”); Tucker v. S. Wood Piedmont Co., 28 F.3d 1089,

1091 (11th Cir. 1994) (assuming, without discussion, that § 9658 applied to

preempt the state statute of limitations at issue). But this position ignores the

statutory exemptions from CERCLA and the definitions themselves, and runs

afoul of the principle that terms included in a statute must have consistent

meanings throughout. See Sorenson v. Sec’y of Treasury, 475 U.S. 851, 860,

106 S. Ct. 1600, 1606 (1986); see also Sierra Club v. Seaboard Farms, Inc., 387

F.3d 1167, 1175 (10th Cir. 2004).

In a related vein, the Seventh Circuit analyzed § 9658 in relation to the

claim of a worker who was attempting to sue both his employer and a provider

of asbestos to which he had been exposed many years earlier in the workplace.
No. 06-60708

6

Id. at 1439. See also Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449, 125 S. Ct.

1788, 1801 (2005). “(In areas of traditional state regulation, we assume that a federal statute

has not supplanted state law unless Congress has made such an intention ‘clear and manifest’”

(internal citation omitted)).

7

Injuries and Damages from Hazardous Wastes—Analysis and Improvement of Legal

Remedies: A Report to Congress in Compliance with Section 301(e) of the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980 (P.L. 96-510) by the

“Superfund Section 301(e) Study Group,” Arnold & Porter SARA Comm. Print 1982 (22B).

10

Covalt v. Carey Canada, Inc., 860 F.2d 1434, 1435 (7th Cir. 1988). Despite the

facial breadth of the tolling provision, the court’s interpretation centered on the

CERCLA definition of "release" as excluding “exposure to persons solely within

a workplace . . . .” Id. at 1436 (citing 42 U.S.C. § 9601(22)). The court concluded

that the imbedded limitation prevented § 9658 from extending the state statute

of repose against both potential defendants. Covalt hardly carries the day for

Koppers and Beazer here, where arguably the “release” of the toxic chemicals in

soot from the Plant might be covered by CERCLA, but the Covalt court points

out that the CERCLA has defined limits: “It does not regulate emissions from

existing sources (the subject ofthe Clean Air and Clean Water Acts) or the levels

of toxic substances permitted at work . . . .” Id. at 1437. And it notes that the

cost of giving the provision the broadest possible meaning would “preempt wide

sweeps of state law — something we do not lightly attribute to Congress.”6

The ambiguous scope of § 9658 suggests limited preemption, but it also

authorizes our resortto legislative history to clarify the intent of Congress atthe

time of enactment. See Perrone v. Gen. Motors Acceptance Corp., 232 F.3d 433,

440 (5th Cir. 2000). The history here is unusually helpful, inasmuch as the

conference report accompanying the final version of SARA explains that § 9658

was drafted in response to a study mandated by § 301(e) of CERCLA. 132 Cong.

Rec. H9032-04 (1986); 42 U.S.C. § 9651(e). That study (the “301(e) Report”),

authored by a panel of twelve distinguished attorneys, was intended to identify

potential areas for reform in state and federal law.7 Commenting that in some
No. 06-60708

8 See also Becton, 706 So. 2d at 1137 (compiling cases and concluding that “[m]ost

federal courts have limited the application of § 9658 to situations where an underlying

CERCLA claim has been made or could exist based on the presence of hazardous waste —

where there is an underlying claim dealing with, or cause of action providing for, cleanup and

remedial activities.”); Knox, 690 F. Supp. 752, 757 (S.D. Ind. 1988) (explaining that § 9658

applies in “situations where there is an underlying CERCLA action providing for cleanup and

remedial activities”).

11

states limitations periods might commence before a plaintiff became aware of

both his injury and its cause, the panel recommended, among other things,

“discovery rules” to facilitate recovery in appropriate cases. § 301(e) Report, at

43. Throughout its report, however, the 301(e) panel emphasized that it was not

proposing general toxic tort reform. Rather, it was concerned with exposure to

hazardous waste that was already governed by the existing provisions of

CERCLA:

CERCLA is not a regulatory statute in the same sense as the Clean

Air and Clean Water Acts, or as the Toxic Substances Control

Act—i.e., it does not provide for the regulation of hazardous

emissions, or with the regulation of the production or distribution

of toxic or hazardous substances.

§ 301(e) Report, at 42. In summary, “the remedies discussed in this report are

legal remedies for personal injury . . . resulting from the spills of hazardous

substances and disposal of hazardous wastes for which CERCLA provides

cleanup and remedial activities.” Id. (emphasis added).

The 301(e) report was limited to activities already falling under the ambit

of CERCLA. Congress adopted the 301(e) panel’s work in § 9658. 132 Cong. Rec.

H9032-04 (“This section addresses the problem identified in the 301(e) study.”).

Congress did not indicate in the legislative history that it intended to exceed the

scope of CERCLA or the 301(e) Report. Rather, the history shows that § 9658,

as a part of CERCLA, was intended to operate within its bounds. Covalt,

860 F.2d at 1438; U.S. Gypsum, 882 F.2d at 869.8
No. 06-60708

12

We are obliged to raise questions about the preemptive scope of § 9658

because of Barnes's global assertion, and they may be useful in future

discussions of the subject. In the end, however, we will assume that the

provision potentially supersedes Mississippi Code § 15-1-49. Even so, because

§ 9658 is imbued with the terminology of CERCLA, and because we are to

presume, absent manifest Congressional intent, that Congress did not intend

broad preemption in the traditional field of state tort remedies, we conclude that

§ 9658 operates only where the conditions for CERCLA cleanup are satisfied.

This does not mean, as Beazer asserts, that a CERCLA suit must be pending or

that the plaintiff's state law injury claims have to be filed in conjunction with a

CERCLA suit. See O’Connor v. Boeing, 311 F.3d 1139, 1148-49 (9th Cir. 2002).

The statutory text furnishes no such limitation. But the plaintiff must, as the

proponent of a defense to the state statute of limitation, carry her burden to

prove that she is entitled to the benefit of the discovery rule. See O’Connor, 311

F.3d at 1150. She must prove that her claims arose from a "release" of

"hazardous substances" into the "environment," as well as other case-specific

preconditions establishing that the defendant's "facility" falls within CERCLA.

In this case, § 9658 was raised by Barnes as an afterthought, and she

overbroadly construes its preemptive scope. As a result, she failed to offer

evidence or briefing explaining how the Plant's soot emissions give rise to

CERCLA coverage through the statutory terms used in § 9658. Lacking such

necessary proof, we are constrained to reject Barnes's plea for tolling the state

statute, § 15-1-49.

III. CONCLUSION

Because Barnes’s claim is barred by the Mississippi statute of limitations,

her case cannot proceed. We REVERSE the judgment of the district court in

favor of Barnes, and RENDER judgment in favor of the Defendants.