Mest v. Cabot Corp.

Opinions of the United
2006 Decisions 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Precedential or Non-Precedential: Precedential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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"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)
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

1
Fluorosis is a disease caused by fluoride poisoning. It can
cause damage to cows in the form of mottled and blackened teeth,

2
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,

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
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

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
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

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
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,

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
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

6
The letter was addressed to “Rd 2, Keyser Rd.,
Schwenksville, PA,” which was not the Mests’ address. (JA at
143, 777.)

7
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

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
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

9
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

10
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.

11
 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.

12
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

13
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

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
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 assurances that 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,

15
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

16
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

17
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

18
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

19
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

20
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

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
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. Pennsylvania-
American 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

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
 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.

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.