Full opinion text
ORDER ARCARA, District Judge. This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1), on February 16, 1996. On November 5, 1997, defendants filed a motion for partial summary judgment on statute of limitations grounds. On February 12, 1999, Magistrate Judge Foschio filed a Report and Recommendation, recommending that defendants’ motion for partial summary judgment should be denied as to Harry Basinski, Ellen Basinski, Raymond Freier and Rose Freier and granted as to Grace Astor, Kevin Batt, Patricia Batt, Geraldine Davies, Morley Davies, Robert Fiels, Annabel Foisset, Leo Foisset, Carl Forman, Nancy Forman, Raymond Freier, Rose Freier, Tab Fuqua, Helen Hancock, Marlene Lamancuso, Michael Lamancuso, Louis Manolis, Marie Manolis, Donald McKowan, Donna McKo-wan, Charlotte Mucha, Flora Mueller, Franklin Mueller, William Nielsen, Norman Wagner and Mary Ylmar. Plaintiffs filed objections to the Report and Recommendation. Oral argument on the objections was held on August 5, 1999. Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation. Accordingly, for the reasons set forth in Magistrate Judge Foschio’s Report and Recommendation, defendants’ motion for partial summary judgment is: (1) denied as to Harry Basinski (based on his prostate cancer), Ellen Basinski (loss of consortium claim based on Harry Basinski’s claim), Raymond Freier (based on his loss of consortium claim asserted with respect to Rose Freier’s personal injury claims limited to her liver and throat cancers), and Rose Freier (based on her personal injury claims limited to her liver and throat cancers); and (2) granted as to Grace Astor, Kevin Batt, Patricia Batt, Geraldine Davies, Morley Davies, Robert Fiels, Annabel Foisset, Leo Foisset,. Carl Forman, Nancy Forman, Raymond Freier (as to his personal injury and failure to warn claims), Rose Freier (as to her loss of consortium claim relative to Raymond Freier’s personal injury claim), Tab Fu-qua, Helen Hancock, Marlene Lamancuso, Michael Lamancuso, Louis Manolis, Marie Manolis, Donald McKowan, Donna McKo-wan, Charlotte Mucha, Flora Mueller, Franklin Mueller, William Nielsen, Norman Wagner and Mary Ylmar. The case is referred back to the Magistrate Judge for further proceedings. IT IS SO ORDERED. REPORT and RECOMMENDATION FOSCHIO, United States Magistrate . Judge. JURISDICTION This case was referred to the undersigned by the Honorable Richard J. Ar-cara on February 16, 1996, for report and recommendation on all dispositive motions. It is presently before the court on Defendants’ motion for partial summary judgment (Docket Item Number 343), filed November 5, 1997. BACKGROUND This action was commenced on January 10, 1995, by the filing of the first of six essentially identical complaints on behalf of 63 Plaiiltiffs, suing on behalf of themselves or their respective decedents, in which Plaintiffs seek monetary damages including punitive damages from Defendants for injuries or deaths from various cancers which they contend were caused by exposure to hazardous and toxic substances from the Pfohl Brothers Landfill located in Cheektowaga, New York (the “Landfill”). Originally assigned to Hon. John T. Elf-vin, this matter was transferred to Hon. Richard J. Arcara by order dated October 15, 1995. Judge Arcara, by order dated February 16, 1996, consolidated these actions for all pre-trial purposes. That order was also made applicable to any future related eases. The pending- summary judgment motion pertains to six separately filed actions including (1) Frier v. Westinghouse, No. 95-CV-20A(F), filed January 10, 1995 (“Freier”), which covers the claims pertaining to Plaintiffs Raymond Freier, Tab Fuqua and Charlotte Mucha, (2) Batt v. Westinghouse, No. 95-CV-107A(F), filed February 14, 1995 (“Batt”), which covers the claims pertaining to Plaintiffs Leo Foisset, Helen Hancock, Flora Mueller, Franklin Mueller and William Nielsen, (3) Astor v. Westinghouse, No. 95-CV-247A(F), filed March 29, 1995 (“Astor ”), which covers the claims pertaining to Plaintiffs Grace Astor, Ellen Basin-ski, Harry Basinski, Louis Manolis, Marie Manolis and Mary Ylmar, (4) Davies v. Westinghouse, No. 95-CV-444A(F), filed June 5, 1995 (“Davies ”), which covers the claims pertaining to Plaintiffs Kevin Batt, Patricia Batt, Geraldine Davies, Morley Davies, Annabel Foisset, Rose Freier, Donald McKowan, Donna McKowan and Norman Wagner, (5) Fiels v. Westinghouse, No. 96-CV-395A(F), filed June 17, 1996 (“Fiels ”), which covers the claims of Plaintiffs Robert Fiels, Carl Forman and Nancy Forman, and (6) Anthony v. Westinghouse, No. 97-CV-19A(F), filed January 10, 1997 (“Anthony”), which covers the claims pertaining to Plaintiffs Marlene Lamancuso and Michael Lamancuso., The personal injury claims are based on New York law negligence, strict liability, gross negligence, wrongful death, loss of consortium and failure to warn. The instant actions are being maintained by Plaintiffs who were alive when their complaint were first filed as well as estate representatives on behalf of five Plaintiffs who died since suit was commenced. Plaintiffs allege that they lived, worked or engaged in recreational activity in the vicinity of the Landfill and that Defendants either owned and operated the Landfill or were otherwise responsible for the generation or transportation of the hazardous substances to the Landfill. Federal subject matter jurisdiction is based on diversity of citizenship. The instant motion seeks summary dismissal of the personal injury, failure to warn, wrongful death and loss of consortium claims asserted on behalf of 28 Plaintiffs, most of which would be time-barred under New York law. Plaintiffs urge that these claims are nevertheless timely under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq., (“CERC-LA”), as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), 100 Stat. 1613, specifically, § 309, codified as 42 U.S.C. § 9658 (“§ 9658”), which, by preempting the accrual date for state law toxic tort actions based on exposure to hazardous substances released into the environment by facilities as defined by CERCLA, permits such claims to accrue upon the discovery of the cause of the injury. Pursuant to § 9658, a toxic tort action accrues upon the federally required commencement date (“FRCD”), which is the date the cause of a plaintiffs injury is, or with reasonable diligence should be, discovered. On February 16, 1996, Defendants were granted a period of discovery limited to their statute of limitations defense. On June 11, 1997, Defendants filed a motion for partial summary judgment seeking dismissal of the survival and wrongful death actions on behalf of 20 decedents and the consortium claims on behalf of eight surviving spouses as time-barred under the applicable New York statutes of limitations and challenging the applicability and constitutionality of § 9658. In a Report and Recommendation issued on March 11, 1998, adopted by Judge Arcara on October 27, 1998, the court found, inter alia, that although some of the survival actions were barred under New York limitations statutes, the specific New York statute applicable to accrual of toxic tort actions was partially preempted by the FRCD and that the FRCD violated neither the Commerce Clause nor the Tenth Amendment. In re Pfohl Brothers Landfill Litigation, 26 F.Supp.2d 512 (W.D.N.Y.1998) (“Pfohl I”). Summary judgment was denied as a genuine issue of material fact as to the correct FRCD existed. Id. On November 5, 1997, Defendants moved for summary judgment to dismiss the personal injury and loss of consortium claims of the surviving Plaintiffs, asserting that § 9658 is unconstitutional, inapplicable to the instant claims, or, if applicable, that it does not render these actions timely as the causes of action accrued earlier than Plaintiffs assert. Plaintiffs filed their responses on December 24, 1997 and Defendants replied on January 20, 1998. Oral argument was deemed unnecessary. Between October 28, 1997 and November 7, 1997, Plaintiffs made six motions to amend the six separate complaints filed in Freier, Batt, Astor, Davies, Fiels and Anthony. Those motions became moot on December 11, 1997 when Plaintiffs filed amended motions to amend the complaints. On August 81, 1998, thee motions were granted insofar as they sought to (1) dismiss four Defendants, namely W.S. Tyler, Inc., Browning-Ferris Industries, Inc., Waste Management, Inc., F.N. Burt Company, and Litton Services, Inc., (2) dismiss loss of consortium claims asserted by two Plaintiffs, (8) assert a failure to warn claim, (4) amend the factual allegations of the complaints as to when the cause of Plaintiffs’ injuries was discovered, (5) with respect to five Plaintiffs who had died since commencing suit, Rose Freier, Annabel Foisset, Leo Foisset, Helen Hancock and Louis Manolis, substitute representatives of such deceased Plaintiffs’ estates as Plaintiffs, and (6) assert wrongful death claims on behalf of the now deceased Plaintiffs. The remaining allegations contained in the original complaints were unchanged. Plaintiffs filed the amended complaints on October 1, 1998. (Docket Items Numbers 511 (Anthony), 512 (Freier), 513 (Davies), 514 (Batt), 515 (Fiels) and 516 (Astor)). As noted, the instant motion seeks summary dismissal of the personal injury claims asserted as to 20 Plaintiffs, specifically Grace Astor, Harry Basinski, Kevin Batt, Geraldine Davies, Robert Fiels, Annabel Foisset, Leo Foisset, Nancy For-man, Raymond Freier, Rose Freier, Tab Fuqua, Helen Hancock, Michael Lamancu-so, Louis Manolis, Donna McKowan, Charlotte Mucha, Franklin Mueller, William Nielsen, Norman Wagner and Mary Yl-mar. Dismissal of claims for loss of consortium brought by Ellen Basinski, Patricia Batt, Morley Davies, Delores Fiels, Leo Foisset, Annabel Foisset, Carl For-man, Rose Freier, Raymond Freier, Marlene Lamancuso, Marie Manolis, Donald McKowan, Flora Mueller and Patricia Wagner is also sought. See Amended Complaints filed in Anthony (Docket Item Number 511), at ¶ 32, Freier (Docket Item Number 512), at ¶ 30, Davies (Docket Item Number 513), at ¶ 33, Batt (Docket Item Number 514), at ¶ 36, Fiels (Docket Item Number 515), at ¶ 30 and Astor (Docket Item Number 516) at ¶ 32. According to the amended complaints, Plaintiffs allege that the FRCD, i.e., the earliest date on which it became possible to discover the cause of their injuries is December 1994. For the reasons which follow, Defendants’ motion for partial summary judgment should be DENIED as to Harry Basinski (based on his prostate cancer), Ellen Basinski (based on her loss of consortium claim), Raymond Freier (based on his loss of consortium claim asserted with respect to Rose Freier’s personal injury claims limited to her liver and throat cancers) and Rose Freier (based on her personal injury and failure to warn claims limited to her liver and throat cancers), and GRANTED as to Grace Astor, Kevin Batt, Patricia Batt, Geraldine Davies, Morley Davies, Robert Fiels, Annabel Foisset, Leo Foisset, Carl Forman, Nancy Forman, Raymond Freier (as to his personal injury and failure to warn claims), Rose Freier (as to her loss of consortium claim relative to Raymond Freier’s personal injury claim), Tab Fuqua, Helen Hancock, Marlene Lamancuso, Michael Lamancuso, Louis Manolis, Marie Manolis, Donald McKowan, Donna McKowan, Charlotte Mucha, Flora Mueller, Franklin Mueller, William Nielsen, Norman Wagner and Mary Ylmar. FACTS The Landfill encompasses 120 acres of the northeastern corner of the Town of Cheektowaga, New York, a suburban area adjacent to the City of Buffalo. Since 1983, the Landfill has been listed on the New York State Registry of Active Hazardous Waste Disposal Sites, indicating that the state considers the Landfill to be a public health threat. It is undisputed that industrial wastes including hazardous substances were deposited into the Landfill between 1932 and 1969. Three tributaries to Ellicott Creek flow through the landfill and Aero Lake is adjacent to the northwestern corner of the Landfill. Many of the Plaintiffs claim that over a number of years they regularly hunted, hiked, and walked in the vicinity of the Landfill. Children often played in the Landfill and built “play forts” out of debris found there. Some Plaintiffs stated at their depositions to crossing the Landfill on their way to Aero Lake where they swam and fished. Most Plaintiffs admitted that they observed landfill waste, including leaking, rusting barrels, discarded x-rays, and what appeared to be chemical deposits, and some admitted that they removed items from the Landfill for personal household use. Many of the Plaintiffs who reside in the vicinity of the Landfill reported that their property was occasionally flooded when Ellicott Creek overflowed. Plaintiffs in this action have filed claims based on negligence, strict liability, gross negligence, failure to warn, loss of consortium, and wrongful death for injuries or deaths to their respective decedents whose deaths they contend were caused by exposure to hazardous and toxic substances in the Landfill. The Pfohl Defendants are the owners and were the operators of the Landfill as well as the companies which assertedly generated and transported the hazardous and toxic substances to the Landfill. According to Plaintiffs, Defendants’ negligence is based upon their failure to take adequate precautionary measures to properly contain and prevent the hazardous substances deposited into the Landfill from escaping and migrating out of the Landfill and its surrounding area where Plaintiffs and their decedents resided, as well as their failure to warn Plaintiffs of the danger the Landfill posed to their health. Plaintiffs allege exposure occurred through contact with the ambient air and ground water when their decedents lived, worked or engaged in recreational activity in the vicinity of the Landfill. Among the toxic substances allegedly deposited in the Landfill are polychlori-nated biphenol (“PCB”) oils, acetone, trichloroethane, 3-tricloroethane, perchlo-roethylene, trichloroethylene, tetrachlo-roephylene, coolant oil, paint treatment, waste cutting oils, degreasing materials, hydraulic oil, waste paint, industrial wastes, fluorinated solvent waste, cobalt, mercury, toluene, vinyl toluene, benzene, xylene, methylene fluoride, lead, lead driers, calcium, cadmium, zinc oxide, curing sulfur, dry metal dust, sand blast grit, foundry wastes, pine tar pitch, pickling solutions, titanium tetrachloride, polyvinyl alcohol film wastes, polyvinyl chloride, naptha, mek, waste inks, heavy metal wastes, paint thinners, paint solvents, industrial solvents, zirconium sludge, phenolic sludges, and paint sludges such as zinc, tin, chrome, iron, nickel, copper, asbestos, phenol, and fly ash. Defendants who operated manufacturing facilities within the Western New York region and who it is alleged negligently released and disposed of hazardous substances into the Landfill include Westinghouse Electric Corporation during the years 1946 through 1969, General Motors Corporation from the 1950’s through 1968, Curtiss-Wright Corporation during .the years 1947 through 1966, Laidlaw Waste Systems, Inc., individually, and as successor in interest to U.S. Rubber Reclaiming Co., Inc., during the 1950’s and 1960’s, Warner Lambert Company, through its subsidiary American Optical, during the 1950’s and 1960’s, American Standard, Inc., during the 1950’s and 1960’s, Howden Fan Company, f/k/a/ Buffalo Forge, during the 1950’s and 1960’s, Carborundum Company for the time period 1951 through 1967, and E.I. Dupont deNemours, from 1955 through 1968. Defendants who it is alleged negligently transported and deposited hazardous substances into the Landfill include Rapid Disposal Services, Inc., and Niagara Sanitation Company, Inc., during the 1950’s and 1960’s, and Dresser Industries, Inc., during the 1950.’s and 1960’s. Plaintiffs allege that the cause of their cancers were not discovered before December 1994. This allegation is based in part on the issuance of the Pfohl Environmental Health Study prepared in 1994 by David A. Rigle, M.D. and William R. Sawyer, Ph.D., ABFE (“the Rigle-Sawyer Report”), at the request of Plaintiffs’ attorneys. Plaintiffs maintain that it was only when the results of the Rigle-Sawyer Report were shared with them in 1994 and 1995 that they believed a connection between the hazardous and toxic substances deposited in the Landfill and their cancers existed. DISCUSSION Summary judgment of a claim or defense will be granted when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). The moving party for summary judgment bears the burden of establishing the nonexistence of genuine issue of material fact. If there is any evidence, in the record based upon any source from which a reasonable inference in the nonmoving party’s favor may be drawn, the moving party cannot obtain a summary judgment. Celotex, supra, at 331, 106 S.Ct. 2548. Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, supra, at 247-48, 106 S.Ct. 2505. Defendants have moved for partial summary judgment seeking dismissal of the claims of 28 Plaintiffs on statute of limitations grounds, arguing such claims are time-barred because § 9658 does not apply to the asserted causes of action, and, alternatively, that the statute is unconstitutional as beyond the scope of congressional legislative power under the Commerce Clause and violates the Tenth Amendment. Defendants, further assert that Plaintiffs’ loss of consortium claims must be dismissed as they are derivative of the underlying survival actions on which they are based and therefore are also time-barred. Finally, Defendants argue that the claims for punitive damages must be dismissed as such claims are both legally insufficient and their timeliness is dependent on the underlying time-barred personal injury and loss of consortium claims. The court will therefore first determine whether Plaintiffs’ claims are time-barred under relevant state law and if so, whether § 9658 is applicable and, to the extent applicable, its preemptive effect on New York law. If the state law is preempted, the court will examine whether Defendants’ argument that even if § 9658 pertains to these actions they are, nevertheless, untimely as the FRCD occurred no later than the end of 1991. The court will also again address the constitutionality of § 9658. Finally, the court will determine whether Plaintiffs’ loss of consortium and punitive damages claims may proceed. 1. Statute of Limitations The timeliness of a claim in federal court under diversity jurisdiction, 28 U.S.C. § 1332(a), is governed by the statute of limitations for the state in which the court sits. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 109-110, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Personis v. Oiler, 889 F.2d 424 (2d Cir.1989). Accordingly, this analysis begins with an application of the relevant New York statutes of limitations. Based on this analysis, the court finds that most of Plaintiffs’ claims are time-barred. a. The Timeliness of Plaintiffs’ Claims under New York Law In New York, the general limitations period for personal injury torts, including personal injury and survival actions, based on negligence, strict liability, gross negligence and loss of consortium is three years measured from the date of the injury. N.Y. Civ. Prac. L. & R. § 214(5) (McKinney, 1990)(“ § 214(5)”). This so-called “first exposure rule” was judicially established in Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 200 N.E. 824 (1936), and remains, for most torts, the traditional rule in New York. Blanco v. American Telephone and Telegraph Co., 90 N.Y.2d 757, 666 N.Y.S.2d 536, 689 N.E.2d 506, 509 (1997)(holding that a cause of action in a case of latent injuries accrues under the traditional rule upon plaintiffs initial exposure). In the case of toxic torts, under § 214(5), the date of first exposure to the hazardous substance would ordinarily be the infliction of the initial injury. Blanco, supra, Schmidt, supra. Here, Plaintiffs seek recovery for their own, or their decedents’, injuries based on exposure to toxic substances that first occurred between 1917 and 1976. Defendants’ Exhibit 7-13, and 9-15, respectively. All the instant actions are thus untimely under § 214(5) as more than three years have passed since the date of first exposure to the alleged toxic substances and the filing of Plaintiffs’ complaints in 1995, 1996 and 1997. As the first exposure rule barred many plaintiffs from commencing actions for injuries caused by latent effects of exposure to hazardous and toxic substances, usually over a long period of time, before discovering their resulting injuries and the causes thereof, in 1986 New York enacted Section 214-c of the New York Civil Practice Law and Rules (“CPLR”) which established, for toxic tort cases, special accrual rules and limitations periods effectively providing more time for plaintiffs to file claims seeking damages for injuries and deaths attributed to exposure to such substances. Under § 214-c(2), a three year statute of limitations applies to actions in which recovery is sought “for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances ... computed from the date of the discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.” N.Y. Civ. Prac. L. & R. 214-c (2)(McKinney 1990)(“ § 214-c(2)”) (emphasis added). Here, Plaintiffs seek recovery based on cancers, the earliest of which was discovered in 1963, Defendants’ Exhibit 1-3, and the latest of which was discovered in December 1995. Defendants’ Exhibit 10-19. An examination of all the relevant exhibits submitted on this motion demonstrates that Plaintiffs’ claims are all untimely under § 214-c(2) except the claims of Plaintiffs Harry Basinski and Rose Freier. Specifically, Harry Basinski was diagnosed with throat cancer in February 1992 and prostate cancer in 1994, Defendants’ Exhibit 2-6, and Rose Freier was diagnosed with lung cancer in 1984, liver cancer in 1994 and throat cancer in 1995. Defendants’ Exhibit 10-19. Only the claims arising from Mr. Basinski’s prostrate cancer which was diagnosed in 1994, and the claims based on Mrs. Freier’s liver and throat cancers, respectively discovered in 1994 and 1995, are timely under § 214-c(2) as all such claims were filed within three years of the discovery of their injuries. However, the actions of both Mr. Basinski and Mrs. Freier are untimely under § 214-c(2) insofar as Mr. Basinski’s action is predicated on his discovery of throat cancer in 1992, and Mrs. Freier’s action is based on her discovery of lung cancer in 1984. Further, pursuant to N.Y. Civ. Prac. L. & R. § 214-c (4)(McKinney 1990 & Supp. 1997)(“ § 214-c(4)”), where a prospective plaintiff discovers his injury but is unaware of the cause until more than three years after discovery of such injury thus rendering the action untimely under § 214-c(2), “an action may be commenced or a claim filed within one year of such discovery of the cause of the injury,” provided less than five years have elapsed since the discovery of the injury. § 214-c(4) (emphasis added). Additionally, reliance on § 214-c(4) requires that the plaintiff “allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified, or determined prior to the expiration of the period within which the action or claim would have been authorized .... ” § 214-c(4); Practice Commentary to N.Y. Civ. Prac. L. & R. § 214-c(4), p. 634-35 (McKinney 1990) commenting that § 214-c(4) requires a plaintiff to establish “that the state of medical or scientific knowledge was such that causation of his injury could not have been identified within the three-year period prescribed [under § 214-c(2) ].” Here, all Plaintiffs assert that they discovered the cause of their decedents’ injuries in 1994. See Exhibits 1-20. Accordingly, the remaining actions are timely only if filed within one year of the discovery of the causes of such injuries and if Plaintiffs establish that the state of medical, technological and’scientific knowledge and information was insufficient such that it was not possible to discover the cause of their injuries within time to commence the instant actions within three years from the discovery of their cancers. Also, as 1994 is the asserted date of discovery of the cause of the injuries pertaining to all these actions, the actions commenced with the filing of the Fiels complaint on June 17,1996 or the Anthony complaint on January 10, 1997 were not filed within the one year limitations measured from the discovery of the alleged cause of death as required under § 214-c(4), and thus, even if § 9658 applies, are nevertheless time-barred under New York law. Accordingly, § 214-c(4) applies, if at all, only to the personal injury, failure to warn, loss of consortium, and survival and wrongful death actions predicated on the cancers of Grace Astor, Harry Basinski (with regard to his throat cancer diagnosed in 1992), Kevin Batt, Annabel Foisset, Leo Foisset, Raymond Freier, Rose Freier (with regard to her lung cancer diagnosed in 1984), Tab Fuqua, Helen Hancock, Louis Manolis, Donna McKowan, Geraldine Morley, Charlotte Mucha, Franklin Mueller, William Nielsen, Norman Wagner and Mary Ylmar, b. The FRCD Applies to Personal Injury Actions under New York Law As most of the. personal injury, loss of consortium, failure to warn, survival actions and all the wrongful death actions are time-barred under New York law, Plaintiffs assert that the timeliness of their claims are governed by § 9658. It is undisputed that this federal enactment neither creates a separate federal cause of action based on toxic torts within its terms nor a uniform statute of limitations for such torts; rather, it provides a uniform accrual date from which the applicable state period of limitation governing the relevant claim is measured. 42 U.S.C. § 9658(a)(4)(B). The FRCD therefore effectively creates federally mandated discovery rule for accrual of state law claims involving releases of hazardous substances that cause or contribute to personal injury. Pfohl I, at 522; Kowalski v. Goodyear Tire and Rubber Co., 841 F.Supp. 104 (W.D.N.Y.1994). Defendants have incorporated by reference their arguments on this same issue in Pfohl I. Liaison Group Defendants’ Memorandum of Law in Support of Consolidated Motion for Partial Summary Judgment filed November 5, 1997, (Docket Item Number 346) (“Defendants’ Memorandum of Law”) at 8 (citing Liaison Group Defendants’ Memorandum of Law in Support of Consolidated Motion for Partial Summary Judgment filed June 10, 1997) (Docket Item Number 290) (“Defendants’ Pfohl I Memorandum of Law”), at 25-26. Defendants maintain that the FRCD statute is inapplicable to toxic tort actions brought under New York law as the relevant New York statute of limitations does not provide for a commencement date which is earlier than the FRCD. Under § 214-c(4), if the cause of the injury is not discovered in time for a toxic tort action to be commenced under § 214-c(2), an additional one year limitations period is provided within which to commence such action measured from the earlier of the date the cause of the injury was, or which with reasonable diligence should have been, discovered. Defendants’ Pfohl I Memorandum of Law at 25. Thus, Defendants argue that both § 9658 and § 214-c(4) provide for the same commencement of the limitations period, ie., the day any Plaintiff discovered, or reasonably should have discovered, the cause of the injuries for which relief is sought. Defendants’ Pfohl I Memorandum of Law at 25-26. Defendants, however, overlook the fact that § 214-e(4) is limited to those instances where less than five years have elapsed since the discovery of the injury. Because the § 214-c(4) five year limitation operates to defeat Plaintiffs’ claims, it is not an irrelevant issue. As the court found in Pfohl I, § 9658 has preempted § 214-c(4) to render it consistent with federal law by overriding the proviso to § 214 — c(4) limiting the benefit of the extra year within which to file a toxic tort claim to a maximum period of five years from discovery of the injury. Pfohl I, at 530-31. Significantly, the FRCD does not displace § 214-c(4)’s one year limitations period. Pfohl I, at 531. Defendants also argued in support of the prior motion that even if the court finds that the FRCD preempts the specific accrual rules established by § 214-c, as § 214-c applies only to those acts which occurred on or after July 1, 1986, Defendants’ Pfohl I Memorandum of Law, at 15-16, no Plaintiff for whom the injury was discovered prior to July 1, 1986, and for which injury more than three years had elapsed between the date of exposure and July 1, 1986, can invoke any part of § 214-c, and thus the FRCD, to demonstrate the required timeliness of such claim. Defendants’ Pfohl I Memorandum of Law, at 15-16. However, as the court found in Pfohl I, although CPLR § 214-c(6) restricts the applicability of the new limitations period under § 214-c, the FRCD preserves all claims brought in a state court after CERCLA’s effective date, December 11, 1980, and § 9658 overrides § 214-c(6) as the instant claims were all commenced in either 1995, 1996 or 1997. Accordingly, the instant claims were not time-barred under § 214 — c(6), and receive the benefit of the more favorable statute of limitations under § 214-c, as preempted by the § 9658. Pfohl I at 531-32. In the Report and Recommendation issued with respect to the prior motion seeking dismissal of the claims commenced on behalf of decedents who died before suit was commenced, the court considered the fact that most of those Plaintiffs had asserted December 19, 1994 as the correct FRCD. Such assertion was attributed to a meeting held on December 19, 1994 at which Plaintiffs’ attorneys shared the results of the Rigle-Sawyer Report with them. Those Plaintiffs thus maintain that December 19, 1994 is the first date that adequate information was available for any Plaintiff to learn the cause of his cancer. The court found the date that Plaintiffs’ admission that sufficient information was available on December 19, 1994 for any one Plaintiff to “know” the cause of his injury indicates that sufficient information was available on December 19, 1994 for all Plaintiffs to know the cause of their injuries. Pfohl I at 531. As such, December 19, 1994 was the latest possible FRCD for the accrual of any claim whose timeliness depends on the FRCD. Id. That finding applies with equal force to the instant claims. c. Survival and Wrongful Death Actions As stated, six Plaintiffs who were alive when these actions were commenced have since died, namely, Ellen Basinski, Annabel Foisset, Leo Foisset, Rose Freier, Helen Hancock and Louis Manolis. The actions of all those deceased Plaintiffs, except for Mrs. Basinski whose action was limited to loss of consortium based on her husband’s cancer, are now maintained as survival actions by representatives of the decedents’ estates who have also added wrongful death claims. To date, there has been no substitution of a representative of Mrs. Basinski’s estate to continue her claim. An essential element of both survival and wrongful death claims is that the decedent have died with a viable cause of action against the infliction of the injury which caused the death. N.Y. Est. Powers & Trust Law §§ 11-3.2 (survival actions) and 5-4 (wrongful death). Unlike Pfohl I, in which the court was required to consider whether § 9658 applied to survival and wrongful death actions where the injured persons died before it was possible to know the cause of their injuries, no similar analysis is required here as these actions were commenced by Plaintiffs who acquired such knowledge before their deaths. Accordingly, the timeliness of the instant survival and wrongful death actions is based solely on whether the newly deceased Plaintiffs’ actions were timely filed, and thus viable, before their deaths. 2. The Timeliness of Plaintiffs’ Claims Given the Benefit of the FRCD Defendants assert that summary judgment should be granted as to the instant claims as sufficient public information existed such that Plaintiffs, had they fulfilled their obligation to exercise due diligence, would have discovered the cause of their injuries prior to 1992. Defendants’ Memorandum of Law. Plaintiffs argue that summary judgment should be denied as genuine issues of material fact exist as to when each Plaintiff knew or should reasonably have known that their respective cancers were caused by the Landfill, particularly in light of the number of possible causes of cancer, the fact that no Plaintiff ever received medical or scientific advice that his cancer may be attributed to the Landfill, as well as the competing policies of statutes of limitations and the discovery rule. Plaintiffs’ Memorandum of Law at 14. Defendants reply that Plaintiffs have failed to demonstrate that they could not have determined the cause of their injuries pri- or to 1992. Defendants’ Reply Memorandum of Law at 10. As discussed, the timeliness of the claims pertaining to Harry Basinski based on his prostate cancer as well as to Rose Freier based on her liver and throat cancers do not depend on § 9658 as they were filed within three years of the date of their discovery and thus are timely under § 214-c(2). Further, all Plaintiffs’ remaining claims filed in 1996 and 1997 are untimely even with the benefit of § 9658 as they were filed more than three years after discovery of the relevant cancers and more than one year after the asserted FRCD of December 1994. The court thus must consider whether the remaining personal injury, failure to warn, loss of consortium, and survival and wrongful death actions predicated on the cancers of Grace Astor, Harry Basinski (with regard to his throat cancer diagnosed in 1992), Kevin Batt, Annabel Foisset, Leo Foisset, Raymond Freier, Rose Freier (with regard to her lung cancer diagnosed in 1984), Tab Fuqua, Helen Hancock, Louis Manolis, Donna McKowan, Geraldine Morley, Charlotte Mucha, Franklin Mueller, William Nielsen, Norman Wagner and Mary Yl-mar, are timely under § 214-c(4) as filed within one year of the date the cause of their respective cancers should reasonably have been discovered. a. Burden of Proof Preliminarily, the court considers Plaintiffs’ argument that Defendants seek to hold Plaintiffs to a higher standard of proof than is required on a motion for summary judgment. Plaintiffs’ Memorandum of Law at 8. Specifically, Defendants have argued that to defeat summary judgment on a statute of limitations issue, Plaintiffs must establish by competent evidence that their claims were timely commenced as they neither knew, nor could reasonably have known, more than three years before the first action was commenced on January 10, 1995 (Freier), that their injuries might be caused by exposure to toxic substances deposited into the Landfill. Defendants’ Memorandum of Law at 9-10. Courts are not permitted to weigh evidence in deciding motions for summary judgment, Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir.1995), as the purpose of summary judgment is to identify the existence of a genuine disputed issue of materiality for trial, Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d 1219, 1224 (2d Cir.1994), so as to exclude from going to trial issues which cannot be substantiated. Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997). Where however, as here, the nonmoving party (Plaintiffs) bears the ultimate burden of proof on a dispositive issue, Fed.R.Civ.P. 56(e) requires the non-moving party to go beyond the pleadings and, by affidavits, depositions, answers to interrogatories, or admissions on file, “designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex Corporation v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56). The Second Circuit has interpreted Rule 56 as requiring that, to defeat summary judgment, the nonmoving party must come forward with evidence sufficient to support a jury verdict in its favor once a party moving for summary judgment has made a properly supported showing to suggest the absence of any genuine issue as to all material fact. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995). Accordingly, to survive summary judgment, as Plaintiffs rely on the FRCD to push forward the accrual of § 214 — c(4), Plaintiffs must show, either by evidence admissible at trial or reducible to such evidence, that a material issue of fact exists as to the earliest time when they should have reasonably discovered the cause of their alleged injury making their claims timely under § 214-e(4) as modified by § 9658. ABB Industrial Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351, 357 (2d Cir.1997); Celotex, supra, at 323, 106 S.Ct. 2548. b. Summary Judgment May Be Granted on Statute of Limitations Grounds Plaintiffs assert that when the Plaintiffs knew or should have known the cause of their injuries is not a proper question to be resolved on summary judgment. Plaintiffs’ Memorandum of Law at 9-10. However, contrary to that assertion, courts in this circuit have decided such issues on summary judgment. See, e.g., BellSouth Telecommunications, Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (dismissing claim on summary judgment where evidence established that it was time-barred under Connecticut discovery statute); Griffin v. Garratt-Callahan Co., 74 F.3d 36, 39 (2d Cir.1996) (holding on summary judgment that claims time-barred under § 214—c(2) because the evidence submitted established that the plaintiff knew or reasonably should have known the cause of his injuries earlier than asserted); Humphreys v. Humphreys, 949 F.Supp. 1014, 1019-20 (E.D.N.Y.1997) (finding on summary judgment that claims were time-barred because plaintiff should have discovered cause of her injuries earlier). Accordingly, the court may properly consider on Defendants’ motion when Plaintiffs knew, or reasonably should have known, the cause of their cancers. c. Commencement of the Statute of Limitations under § 214-c(4) as Preempted by § 9658 Plaintiffs maintain that when the relevant period of limitations commenced running must be determined based on a number of factors. For example, Plaintiffs assert the court must take into account the belief that cancer has numerous causes, whether any Plaintiff received medical or scientific advice regarding the cause of his or her cancer, whether such advice allayed any possible suspicion of the cancer’s non-organic etiology, and the purposes of discovery based accrual mechanisms for statutes of limitations as.they relate to toxic torts. Plaintiffs’ Memorandum of Law at 14. Defendants contend that a reasonable suspicion that an injury may have been caused by exposure to toxic or hazardous substances is sufficient to trigger a rule of limitations that is predicated on knowledge of a fact or event. Defendants’ Memorandum of Law at 11. Defendants further maintain that courts have imposed on injured plaintiffs a duty to make a reasonable inquiry as to the cause of their injuries within an applicable statute of limitations period or place their claims at risk of dismissal. Defendants’ Memorandum of Law at 11-12. Plaintiffs, however, argue that any attempt to discover the cause of their injuries would have been fruitless given their lack of formal education and sophistication in medical, technological and scientific fields. Plaintiffs’ Memorandum of Law at 12-13. Plaintiffs define the requisite “pertinent inquiry” to determine the correct FRCD as,“[w]hat would a reasonable person in similar circumstances have known with respect to the cause of his or her cancers.” Plaintiffs’ Memorandum of Law at 13 (emphasis added). However, according to Plaintiffs, such “similar circumstances” include the individual Plaintiffs’ states of mind, education and scientific sophistication, id., and thereby injects a subjective element not present in the definition of the FRCD. As stated, the FRCD is defined as “the date the plaintiff knows (or reasonably should have known) that ■ the personal injury ... w[as] caused or contributed to by the hazardous substance or pollutant or contaminant concerned.” 42 U.S.C. § 9658(b)(4)(A). A plain reading of 42 U.S.C. § 9658(b)(4)(A) demonstrates that when a plaintiff knows or reasonably should know the cause of his injury is both subjective, i.e., the earlier of a plaintiffs actual knowledge, and objective based on the reasonable person standard. Accordingly, Plaintiffs’ argument that their lack of scientific sophistication and formal education has excused them from acting with due diligence to discover the cause of their injuries fails as such factors depend, contrary to the plain meaning of the FRCD, on only the subjective knowledge of each plaintiff, and excludes the alternative objective standard as provided by the FRCD. Relevant caselaw holds that where the timeliness of a cause of action is measured by the date of discovery of the plaintiffs cause of injury, the plaintiff has a duty upon learning he has been injured to investigate for the purpose of determining the cause of the asserted injury. In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court held, in a Federal Tort Claims Act (“the FTCA”) action, that if sufficient information exists in the community such that the plaintiff, armed with the knowledge of his injury could, upon inquiring as to the cause of such injury, have found sufficient information to commence suit, “[t]o excuse him from promptly doing so by postponing the accrual date of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims .... ” Kubrick, supra, at 123, 100 S.Ct. 352. Significantly, in Kubrick, the Supreme Court expected its interpretation of the accrual date of a tort under the FTCA would be relied on in reaching future determinations regarding the timeliness of other claims based on similar rules. Kubrick, supra, at 124, 100 S.Ct. 352. Kubrick has been interpreted as requiring a plaintiff to investigate the cause of his injury upon its discovery where the accrual of a cause of action is based on discovery of the cause of the injury. Fries v. Chicago v. Northwestern Transp. Co., 909 F.2d 1092, 1095-96 (7th Cir.1990) (“a plaintiff must act diligently and cannot wait until the injury is actually made known to him by some unplanned incident .... Rather, upon experiencing symptoms a plaintiff has a duty to investigate both the injury any suspect cause.”) (emphasis added) (citing Kubrick, supra, at 123, 100 S.Ct. 352). In Kronisch v. United States, 150 F.3d 112 (2d Cir.1998), the Second Circuit upheld summary judgment against a plaintiff who failed to commence an action under the FTCA after more than six years had elapsed since he formed the belief that his injury was caused by his exposure to LSD in the 1950’s as part of a clandestine government approved experiment. The court stated that while neither “a mere hunch, hint, suspicion or rumor of a claim” is sufficient for a cause of action to accrue, they “do give rise to a duty to inquire into the possible existence of a claim in the exercise of due diligence.” Kronisch, supra, at 121 (emphasis added) (citing Hobson v. Wilson, 737 F.2d 1, 35 & n. 107) (emphasis added). The court held that had the plaintiff exercised reasonable diligence by making relevant inquiries, he would have discovered the cause of his injuries soon enough to timely commence an action. Kronisch, supra, at 124. 'Accordingly, the court finds that Plaintiffs were obligated, upon discovering that they had cancer, to investigate to determine the cause of such injuries. The court also finds that sufficient information was available prior to 1992 such that had Plaintiffs fulfilled their duty to inquire upon discovering their injuries as to the possible existence of a claim based on their cancers, Plaintiffs would have been able to file an action more than three years prior to the filing of the instant actions. In support of their motion, Defendants have submitted a plethora of exhibits consisting of government and media reports as well as other publicly available information pertaining to at least three citizen groups concerned with the effect of the Landfill on neighboring areas and residents, indicating that Plaintiffs should have developed a reasonable suspicion as to the cause of their injuries prior to the end of 1991. These exhibits establish that a highly publicized controversy existed within the local community over whether the Landfill posed a threat to the health and safety of those who resided or worked in the vicinity of the Landfill. The sheer volume of exhibits makes it impractical to comment on each item of information as the exhibits comprise, in total, over 10,000 pages. After review of the exhibits, the court finds it is more than reasonable that, given the volume of information available to the public prior to 1992, Plaintiffs could be expected to reasonably suspect the cause of their cancers before the end of 1991. The vast number of media and government reports Defendants submitted in support of summary judgment were all available prior to the end of 1991. For example, a draft report entitled Emergency Task Force on Hazardous Wastes issued in 1979 indicates concerns existed regarding “the migration of leachate which may contain chlorinated benzenes and the resulting contamination of groundwater.” Defendants’ Exhibit 26-4. According to that report, industrial wastes known to have been deposited into the Landfill included pine tar pitch, scrap glass and emery, waste paints and thinners, waste cutting oils, silicon, metal, waste solvents, rouge, phenol tar containing chlorinated ben-zenes, oil, and capacitors with PCBs. Id. The First Annual Report of Hazardous Waste Disposal Sites in New York State, a joint report by the New York State Department of Environmental Conservation (“DEC”) and the New York State Department of Health (“DOH”) issued in June 1989, indicates that the presence of industrial wastes including waste oils, paint, thinners, pine tar pitch, cellulose, rubber, scrap metal, drums and phenol tars in the Landfill was Confirmed. Defendants’ Exhibit 27-17 to 27-21. A DEC report issued in March 1980 indicates that available information demonstrated that the Landfill had received substantial quantities of waste between 1950 and 1970, some of which was of an industrial origin and that the effect of such wastes on surface and ground waters was unknown, although leachate emanating from the site indicated the potential for “serious surface water contamination” as well as possible ground water contamination and that further study of the site was warranted. Defendants’ Exhibit 28-1 to 28-19. A site inspection prepared in 1982 to “score” the Landfill for potential placement .on the Federal Superfund National Priorities List concluded that the presence of toxic chemicals detected at the site posed a hazard to human health from direct contact with the site. Defendants’ Exhibit 29-2 to 29-14. In an internal office memorandum to Peter Buechi with the County of Erie Department of Environment & Planning, Division of Environmental Control, Donald Campbell, Senior Environmental Quality Engineer with the Division of Environmental Control, reported that leachate from the Landfill was entering the stream which flows north of the Landfill and into a brush wetland west of the Landfill. Defendants’ Exhibit 30-1. The DEC and DOH December 1983 Inactive Hazardous Waste Disposal Sites in New York State Annual Report refers to the fact that the Landfill was classified by the DEC as posing a “[significant threat to the public health or environment — action required.” Defendants’ Exhibit 30-10 to 11. Craig Fiels, son of Plaintiff Robert Fiels, prepared his own report on the Landfill in 1985 based on information obtained through FOIA requests. Defendants’ Exhibit 33-2 to 33-4 and 33-7 to 33-52. Fiels concluded that “[ajlthough the available data are not in total agreement as to the severity of the hazard posed by the dump, there seems to be no doubt that a variety of toxic chpmicals are not only present at the site but are also migrating offsite.” Defendants’ Exhibit 33-43. Warning signs were posted around the Landfill in 1986. Defendants’ Exhibit 33-78. In 1987, the Landfill was formally designated as a- State Superfund Site and a remedial investigation/feasibility study was prepared. Defendants’ Exhibit 34-1 to 34-10. In 1988 a Health and Safety Plan for the Pfohl Brothers Landfill was prepared for the DEC. Defendants’ Exhibit 35-7 to 35-GO. That report noted that major contaminants such as benzene, chlorobenzene, chrysene, pyrene, and arsenic had been detected in the Landfill. Defendants’ Exhibit 35-19. Identified as potential routes of exposure were “respiratory exposure from both gaseous vapors and particulates, dermal from both particulates and vapors generated during the soil sampling activities, and adsoprtion during the ground water, soil and sediment, leachate seep, surface water and surface waste sampling.” Defendants’ Exhibit 35-19. A letter written by Thomas Cline, a plaintiff in the parallel state court actions and a founding member of the Pfohl Area Homeowners and Residents Coalition, one of the citizen action committees formed to investigate health concerns relative to the Landfill, to the editor of The Buffalo News appeared in the February 2, 1991 edition of that local newspaper of general circulation. Defendants’ Exhibit 38-9. According to that letter, Mr. Cline believed that toxins and chemicals were migrating off the Landfill causing property values to decline and dissuading further construction in the vicinity of the Landfill. Id. A report was released by the DOH on February 8, 1991 based on water samples collected on October 1990 from sump pumps located in the basements of six residential dwellings in the vicinity of the Landfill. Defendants’ Exhibit 38-40 to 38-52. The purpose of that study was to determine “if contaminants associated with the groundwater on-site have migrated off-site to homes and in a manner that could result in human exposure.” Defendants’ Exhibit 38-40. It was anticipated that such data would be used for “further site characterization” and to select “remedial alternatives.” Id. The report concluded that the levels of hazardous and toxic substances detected in the residences was not sufficient to threaten human health. Defendants’ Exhibit 38-43. A cancer incidence study issued in March 1991 by the Cancer Surveillance Program, Bureau of Cancer Epidemiology, New York State Department of Health reported “[wjithin specific anatomic sites of cancer, a significant excess of cases was observed among males for cases of prostate cancer (79 cases observed, 49 cases expected) and among females for cancers of the breast (130 cases observed, 105 cases expected) .... no other cancer site among males or females was found to demonstrate a significant excess or deficit of cases.” Defendants Exhibit 38-105 to 38-123. The findings contained in the DOH epidemiology study were shared with the public at a meeting held on March 25, 1991. Defendants’ Exhibit 38-127. Notices of that meeting were published in The Buffalo News and The North Cheek-towaga Metro Community News. Defendants’ Exhibit 38-125 & 126. The minutes of that meeting indicate that those in attendance did not believe much of the information that they had received regarding whether the Landfill posed any threat to their physical safety, and that they were aware that the toxic and hazardous substances may have migrated off the site of the Landfill. Defendants’ Exhibit 38-128 to 38-137. A Responsiveness Summary for Remedial Investigation Report was issued by the DEC on April 12, 1991 as follow-up to a public meeting held on March 7, 1991 at Erie County Community College to discuss the results of the remedial investigation completed to date. Defendants’ Exhibit 38-68 to 38-94. That report indicates that the issue of whether the Landfill posed any threat to the health and safety of nearby residents was a key topic of debate and inquiry. Another epidemiology study was released by the DOH in November 1991 as follow up to the earlier March 1991 DOH cancer incidence study. The November 1991 DOH study indicates that deposits into the Landfill between 1932 and 1969 included household wastes, chemical wastes, phenol tars, waste solvents, paints, thinners, pine tar pitch, rubber and scrap •metals. Defendants’ Exhibit 38-192 to 38-196. The report noted that an investigation by the New York State Department of Environmental Conservation (“the DEC”) began in 1983 and subsequent investigations in 1989 and 1990 detected various contaminants at the Landfill including metals (barium, iron, lead and hickel), po-lychlorinated biphenyls (PCBs), polychlori-nated-dibenzo-p-dioxins (“dioxins”) poly-chlorinated dibenzofurans (“furans”) and other organic chemicals. Id. Areas of elevated radiation levels were also detected within the Landfill. Id. The report states that it was “conducted in response to concerns among area residents about potential increased health risks due to contamination from the Pfohl Brothers Landfill.” Id. The report concluded that the higher than anticipated incidence of breast cancers previously observed in March 1991 by the DOH in the Landfill vicinity was attributed to personal risk factors, Defendants Exhibit 38-194, and no statistically significant “clustering” was observed as to previously reported cases of prostate cancer or newly diagnosed leukemia, lymphoma or female lung cancers. Defendants’ Exhibit 38-196. Át a public hearing held on December 11,1991, before DEC Hearing Office Peter J. Buechi, Regional Engineer for Solid and Hazardous Waste, Ms. Weiss, Chairperson of the Pfohl Brothers Landfill Cleanup Committee (“the PBLCC”), a citizen action group whose intended purpose was to monitor the cleanup of the Landfill, spoke. Defendants’ Exhibit 38-210 to 38-251. Ms. Weiss declared that as the DEC had acknowledged to the PBLCC that “the actual volumes of materials and areas to be excavated are not clearly defined .... [the PBLCC] has the perception that the depth of contamination is still unknown.” Defendants’ Exhibit 38-216. 'Ms. Weiss then stated that “people living near or adjacent to this site should be temporarily or permanently relocated.” Id. Although Plaintiffs base their failure to determine the cause of their cancers earlier than December 1994 partly on their lack of formal education, no Plaintiff has maintained that he or she is illiterate or otherwise unable to understand such reports. To the contrary, many of the Plaintiffs admitted in response to Defendants’ interrogatories that they first learned through media reports that exposure to hazardous or toxic substances could cause cancer. See Defendants’ Exhibits 1-9, 2-12, 3-15, 4-14, 5-15, 7-12, 9-14, 10-26, 11-14,13-13, 14-12, 15-17,16-12 and 20-10. For example, in response to Defendants’ interrogatories, Plaintiff Michael Lamancuso indicated that he first learned of a- causal connection between exposure to hazardous and toxic substances and cancer in high school, Defendants’ Exhibit 13-13, while Defendant Norman Wagner stated that he first acquired such knowledge when he attended asbestos removal classes ten years earlier. Defendants’ Exhibit 19-14. Plaintiff Harry Basinski stated in response to Defendants’ Interrogatory No. 10 that it was through media coverage of the Love Canal case, another major environmental case in Western New York, that he first learned that exposure to hazardous or toxic substances might cause cancer. Defendants’ Exhibit 2-12. The fact that other similar lawsuits had been commenced in the Western District of New York also should have alerted Plaintiffs to the cause of their injuries. Specifically, Plaintiffs admitted familiarity wuth the Love Canal case that received extensive coverage in the national media and was one of the major justifications for the SARA legislation which enacted the FRCD in 1986. Further, 'a legal action to recover injuries to real property brought by owners of property located near the Landfill allegedly caused by latent effects of exposure to substances in the Landfill was held time-barred under § 214-c(2) as more than three years before commencing such suit the plaintiffs had applied for reductions of their property tax assessments based on exposure to the Landfill. Pfohl v. Amax, Inc., 222 A.D.2d 1068, 635 N.Y.S.2d 880, 881 (App.Div. 4th Dep’t. 1995). Thomas Cline testified at his deposition on September 3, 1997 that he and Plaintiff Robert Fiéis has previously contacted another attorney, Richard Lippes, Esq. in 1990 to investigate the possibility of commencing legal action similar to their pending actions. Defendants’ Exhibit 39-2 and 39-9. Plaintiffs maintain that despite the existence of publicly available information indicating that the Landfill may pose a threat to residents and workers in the vicinity, numerous other publicly available media, medical and scientific reports allayed any such suspicions they may have had. Plaintiffs’ Memorandum of Law at 2425. At the very least, Plaintiffs maintain that the reassurances created by the reports issued by the New York State Departments of Environmental Conservation and Health, state agencies directly concerned with the potential damage to the environment and public health posed by the Landfill, establish factual issues going to Plaintiffs’ discovery of cause of their injuries as Plaintiffs were entitled to rely on such reports. Plaintiffs’ Memorandum of Law at 25. Despite the existence of such “reassuring reports” there is, however, considerable evidence that the matter of whether the Landfill posed a threat to their health remained unresolved. See, e.g., Plaintiffs’ Exhibits 34-47 to 34-53; 34-54 to 34-73; 34-114 to 34-120 and 34-185 to 34-195. It is also significant that no Plaintiff has pointed to any evidence indicating that he or she relied on these reports. To the contrary, Plaintiffs admit that they never asked an