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Baker v. Saint-Gobain Performance Plastics Corp.

United States District Court, N.D. New York

February 6, 2017

MICHELE BAKER, et al., Plaintiffs,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al., Defendants.

          MEMORANDUM-DECISION AND ORDER

          LAWRENCE E. KAHN U.S. DISTRICT JUDGE.

         I. INTRODUCTION

         This case stems from the contamination of groundwater in the Village of Hoosick Falls with perfluorooctanoic acid, or PFOA. E.g., Dkt. No. 9 (“Complaint”) ¶ 1. While many suits concerning this contamination have been filed in this district, this case is a consolidated class action whose putative classes include all individual owners or renters of real property within the Village, as well as anyone who consumed water from Hoosick Falls and exhibits a heightened blood-serum level of PFOA. Id. ¶ 135.[1]

         In the Complaint, Plaintiffs allege that Defendants-Saint-Gobain Performance Plastics Corp and Honeywell International Inc.-were responsible for this contamination, which came from one or more manufacturing facilities they operated at various times within the Village. Id. ¶¶ 60-86. Because of this groundwater contamination, Plaintiffs claim that the drinking water of Hoosick Falls became nonpotable, [2] causing loss of property value and other damages. E.g., id. ¶¶ 163-66. Additionally, the past consumption of contaminated water has caused PFOA to accumulate in Plaintiffs' blood serum and bodies. E.g., id. ¶¶ 9, 127, 165-66.

         Currently before the Court is Defendants' motion to dismiss for failure to state a claim, which raises several complex and relatively novel questions of state law concerning private claims for water contamination and for ingesting potentially harmful substances. Dkt. No. 13 (“Motion”); see also Dkt. Nos. 13-1 (“Memorandum”), 17 (“Opposition”), 23 (“Reply”).[3] For the following reasons, Defendants' Motion is granted in part and denied in part.

         II. BACKGROUND

         The following facts are taken from the allegations in the Complaint, which are assumed to be true when deciding a motion to dismiss for failure to state a claim. E.g., Bryant v. N.Y. State Dept. of Educ., 692 F.3d 202, 210 (2d Cir. 2012).

         A. PFOA

         “PFOA is a fluorinated organic chemical” originally manufactured by the 3M Company. Compl. ¶¶ 33, 35. Among other things, PFOA is used “to achieve water, oil, and grease repellency, ” and thus has been used to manufacture “carpets, clothing, fabric for furniture, paper packaging for food and other materials such as cookware that are resistant to water, grease or stains.” Id. ¶¶ 37-38. Perhaps most notably, “PFOA was also a key component in the manufacturing of Teflon”-or PTFE-a material used as a nonstick coating and in several other applications. Id. ¶ 39; What Is Teflon?, Chemours, https://www.chemours.com/Teflon/enUS/products/safety/whatisit.html (last accessed Jan. 19, 2017).

         “PFOA is biologically and chemically stable in the environment, ” and can remain in soil and water for extended periods of time. Compl. ¶ 41. This is problematic, Plaintiffs allege, because of the toxic effects of exposure to PFOA. E.g., id. ¶ 43. “PFOA is readily absorbed after ingestion, ” has a human biological half life of two to nine years, and causes health risks even at low levels of ingestion (less than one part per billion, or ppb). Id. ¶¶ 43-44. PFOA binds to serum albumin in the blood, id. ¶ 44, and nationwide blood concentrations average at 2.08 ìg/L, id. ¶ 9.

         Plaintiffs claim that “PFOA is associated with increased risk in humans” of various cancers, along with several other conditions. Id. ¶ 45. “[T]he EPA Science Advisory Board stated that PFOA cancer data are consistent with guidelines suggesting exposure to the chemical is ‘likely to be carcinogenic to humans, '” id. ¶ 46, and the Complaint also points to animal studies showing a connection with other cancers “not yet associated with human exposure, ” id. ¶ 45.

         Plaintiffs cite no studies and make no allegations concerning the dose dependency of these conditions or the threshold levels of exposure associated with them, but do note that the U.S. Environmental Protection Agency (“EPA”) recently issued both a health advisory for drinking water of seventy parts per trillion (or ppt)[4] and a reference dose of 0.000002 mg/kg/day. Id. ¶¶ 49, 53. The health advisory level (70 ppt) suggests that drinking-water sources with greater levels of PFOA should undergo remediation efforts, while the reference dose represents a conservative estimate of the maximum continuous daily exposure likely to be without “an appreciable risk” of negative health effects. Id.[5] Following the EPA's actions concerning PFOA, several states have established similar health advisories and guidelines. Id. ¶¶ 50-52.

         B. The Contamination of Hoosick Falls

         The Village of Hoosick Falls is located in upstate New York near the Vermont border and has a population of approximately 3, 500. Id. ¶ 55. Since as early as the late 1950s, PFOA has been used in manufacturing facilities in and around Hoosick Falls. Id. ¶ 60. One of these facilities-a small factory at 14 McCaffrey Street-appears to be the main source of the Village's PFOA contamination. Id. ¶ 61. Through various acquisitions, the McCaffrey Street site came to be owned by AlliedSignal in 1986, which later adopted Honeywell's name after a merger. Id. ¶¶ 62-64. In 1996, Honeywell sold the site to another company called Furon, but Saint-Gobain acquired Furon in 1999 and continues to own the facility to this day. Id. ¶¶ 65-67.

         At the McCaffrey Street site, Saint-Gobain and Honeywell manufactured stain- and water-resistant fabric, applying a PFOA solution to the fabric in large trays. Id. ¶¶ 68-70. As the fabrics dried, some of the PFOA would vaporize and leave the site by air as particulate matter. Id. ¶ 71. Employees would also wash the trays and pour the resulting discharge down floor drains in the facility. Id. ¶ 72. This in turn would cause PFOA to flow into the soil and ultimately the aquifer. Id.

         Saint-Gobain and Honeywell also used solid PFOA to manufacture Teflon-coated materials and other products in large ovens at the McCaffrey Street site. Id. ¶¶ 76-77. As part of the coating process, a sticky residue containing PFOA would adhere to internal tubing or “stacks” within the ovens, which would be cleaned on a rotating schedule. Id. ¶¶ 78-79. These stacks were cleaned in a large sink, the waste water from which was discharged down a drain, ultimately migrating into the soil and then the aquifer. Id. ¶ 80.

         The Complaint identifies other sites in Hoosick Falls operated by one or both defendants at various times that may also have contributed to the PFOA contamination. Id. ¶¶ 81-84. Additionally, PFOA has been found in leachate emanating from the former municipal landfill, where Defendants allegedly sent waste containing PFOA. Id. ¶¶ 85, 108.

         Approximately 95% of Hoosick Falls residents receive drinking water from the municipal water system, which in turn gathers its water from a well. Id. ¶¶ 57, 87. In 2007, a new well for the municipal system was constructed about five hundred yards from the McCaffrey Street site. Id. ¶¶ 87-88. Additionally, some residents of Hoosick Falls and the surrounding Town of Hoosick receive drinking water from private wells instead of the municipal supply. Id. ¶¶ 58-59.

         From late 2014 to the middle of 2015, the Village conducted testing and received results showing high levels of PFOA in the municipal water system. Id. ¶¶ 89-92. These tests showed PFOA concentrations ranging from 151 to 662 ppt (as noted above, the EPA ultimately advised against using water supplies with concentrations greater than 70 ppt). Id. ¶¶ 53, 93. The Village also oversaw testing of certain private wells, and received results showing PFOA concentrations “significantly above any safe level.” Id. ¶ 94.

         Despite these test results, Village officials maintained that the water was safe to drink. Id. ¶ 95. In October 2015, the EPA Regional Administrator for New York learned of the test results, and in November, the EPA contacted the village and recommended the use of an alternative water source. Id. ¶¶ 96-97. Even then, the New York State Department of Health released a fact sheet the following month stating that “[h]eath effects are not expected to occur from normal use of the water, ” and “Village officials further minimized the potential risk of PFOA.” Id. ¶¶ 98-99.

         After learning of the Village's laissez-faire response, the EPA repeated its recommendation on December 17, 2015. Id. ¶ 100. Shortly thereafter, Saint-Gobain began to provide free bottled water to Village residents on the municipal water system, and agreed to fund the installation of a filter system on the municipal supply. Id. ¶ 102. After some debate with Town and Village residents, the state agreed to provide testing of private wells. Id. ¶¶ 105-07.

         On January 27, 2016, Governor Cuomo and other state officials announced that the McCaffrey Street facility would be classified as a state superfund site, and that PFOA would be classified as a hazardous substance. Id. ¶¶ 110-11. The following day, the EPA advised homeowners with private wells to use bottled water if their wells showed PFOA at concentrations greater than 100 ppt, or if their wells had not yet been tested. Id. ¶ 112.[6] In late February, results from private wells showed that 42 out of 145 wells tested had PFOA concentrations above this 100 ppt threshold, and in early March, tests from the Hoosick Falls Water Treatment Plant included a peak result of 983 ppt. Id. ¶¶ 122, 124.

         Around this time, municipal and state officials began remediation efforts both for municipal and private well users. Id. ¶¶ 121, 123. A temporary carbon filter system was installed at the municipal water treatment plant, and a permanent filter was scheduled for later installation. Id. ¶ 121.[7] Additionally, the New York State Department of Environmental Conservation (“DEC”) announced that it would install point-of-entry treatment (“POET”) systems at homes with private wells. Id. ¶ 123. Plaintiffs allege that Hoosick Falls residents were forced “to deal with frustrations relating to installation and upkeep of POET systems” and that they “must remain installed for the foreseeable future and will require regular maintenance.” Id.

         In February 2016, the Department of Health also began to offer blood testing to Hoosick Falls residents, and over 3, 000 individuals have used this program to date. Id. ¶ 120. The median blood level of those tested is 64.2 μg/L, over thirty times higher than the national average of 2.08 μg/L. Id. ¶ 127. According to Plaintiffs, “the vast majority of residents and former residents of Hoosick Falls have been exposed to PFOA at a level that meets or exceeds some health-based comparison value, ” though again, Plaintiffs do not specify the precise characteristics of these values or the expected consequences thereof. Id. ¶ 130.

         In addition to heightened blood levels of PFOA, the contamination has had collateral effects on homeowners in Hoosick Falls. As alleged in the Complaint, “[t]he presence of PFOA in the municipal water supply and the local aquifer immediately stigmatized the community and has adversely impacted . . . property values.” Id. ¶ 7. These property values “experienced a significant decline since the presence of PFOA was disclosed, ” which “persists to this day and is expected to continue.” Id. ¶ 115. Hoosick Falls residents have also faced difficulty obtaining financing for their homes, as banks would not write mortgages for homes on the municipal water supply, and would not do so for homes with private wells unless testing revealed low levels of PFOA. Id. ¶¶ 113-14.[8] While the Complaint admits that financing has since “resumed, ” the interest rates subsequently offered to borrowers “were much less favorable . . . than the rates offered in late 2015.” Id. ¶ 114.

         C. Plaintiffs' Injuries

         There are two main sources of harm to the named plaintiffs alleged in the Complaint: damage to the Plaintiffs' property and personal injury from their ingestion of PFOA.[9] These are discussed in turn below.

         1. Property Damage

         As a part of the injury alleged for Plaintiffs' negligence and strict liability claims, id. ¶¶ 164, 166, 184, and as the sole source of injury for their nuisance and trespass claims, id. ¶¶ 170, 172, 178, Plaintiffs claim that the PFOA pollution caused harm to real property they either own or rent. Throughout the Complaint, the uniform source of this harm is the contamination of the drinking water in Hoosick Falls, either through the municipal water supply or through private wells on their land. E.g., id. ¶¶ 163-64, 169-70, 178, 182. Plaintiffs' alleged damages include the cost to remediate the contamination of their property, the loss of their use and enjoyment of the property, and a loss in their quality of life. Id. ¶ 186; see also id. ¶ 166 (alleging “damages associated with the investigation, treatment, remediation, and monitoring of drinking water and the contamination of [Plaintiffs'] property, ” among other sources of injury).

         Most significant for the Motion, however, is Plaintiffs' perhaps largest source of damages: a loss in their property values. E.g., id. ¶ 115. As noted before, Plaintiffs allege a precipitious drop in “property values in and around Hoosick Falls, ” a “decline [that] persists to this day.” Id. The Complaint seeks “monetary damages for the diminution of the value of the plaintiffs' property, ” and also lists these damages as an alternative to the cost of remediation mentioned above. Id. ¶ 186. Of course, these damages are applicable only to the plaintiffs who own real property in Hoosick Falls, and the interaction between this theory of injury and Plaintiffs' ability to state their claims is discussed later in this opinion.

         Also relevant in deciding the Motion is the distinction between plaintiffs who use the municipal water supply from the Village and those who own private wells. For example, the Complaint asserts trespass claims only on behalf of those with private wells. See id. ¶ 174 (“This Claim is brought . . . on behalf of the Private Well Water Property Damage Class.”). For ease of reference, the named plaintiffs on the municipal water supply are Pamela Forrest, Michael Hickey (individually and on behalf of his child, O.H.), Kathleen Main-Lingener, Kristin Miller (on behalf of her child, K.M.), James Morier, Jennifer Plouffe, Silvia Potter (individually and on behalf of her child, K.P.), and Daniel Schuttig (collectively, the “Municipal Water Plaintiffs”), and the named plaintiffs with private wells are Michele Baker, Charles Carr, and Angela Corbett (collectively, the “Private Well Plaintiffs”). Id. ¶¶ 10-20.

         2. Personal Injury

         Plaintiffs also seek relief stemming from their consumption of the PFOA-contaminated water. According to the Complaint, the residents of Hoosick Falls “have been exposed for years, if not decades, to PFOA at concentrations well above a safe drinking level, ” an exposure that resulted in “concentrations of PFOA in their blood that is, on average, over 30 times higher than the typical American.” Id. ¶ 9. Plaintiffs combine this allegation with claims that PFOA is associated with increased risk of several cancers and other diseases, noting advised limits on PFOA exposure established by regulators. Id. ¶¶ 45-53. They also claim that this exposure causes them “to suffer injury and damage at the cellular and genetic level by the accumulation of PFOA in their bodies.” Id. ¶ 165. In response to this risk, Plaintiffs seek consequential damages and injunctive relief to either fund or provide “a biomonitoring program that is reasonably tailored to the exposure risks posed by PFOA.” Id. ¶¶ 187, 189.[10]

         Not every Plaintiff claims an increased level of PFOA in their blood. Plaintiffs Charles Carr, Michael Hickey (individually), Kathleen Main-Lingener, K.M. (the son of Kristin Miller), James Morier, Silvia Potter, and K.P. (the daughter of Silvia Potter) (collectively, the “Accumulation Plaintiffs”) all allege heightened blood-serum levels of PFOA. Id. ¶¶ 10-20. On the other hand, Michele Baker, Angela Corbett, Pamela Forrest, O.H. (the son of Michael Hickey), Jennifer Plouffe, and Daniel Schuttig (collectively, the “Nonaccumulation Plaintiffs”) do not personally allege any heightened blood concentration of PFOA. Id. Importantly, Plaintiffs do not allege any current manifestation of disease or symptoms related to PFOA exposure. Id.; cf. id. ¶ 137 (excluding “any individual . . . who has filed a lawsuit for personal injury for a PFOA-related illness related to exposure to municipal or private well water” from the proposed class definitions).

         D. Defendants' Motion

         After the consolidated complaint was filed in this action, Saint-Gobain and Honeywell moved to dismiss the Complaint for failure to state a claim. Mot.[11] The core of Defendants' argument is that Plaintiffs have not suffered a legally cognizable injury-either to their property or to their bodies-sufficient to allege a tort under New York law. Mem. at 30-40.

         First, Defendants argue that all of Plaintiffs' property damage claims are based on injury to groundwater, but because groundwater in New York is “a public resource held by the State for the benefit of the public, ” Plaintiffs lack standing to sue and cannot claim a cognizable injury to their own property. Id. at 31-32. Additionally, Defendants argue that claims for economic injury alone-here, a loss in property value-are not allowed under New York law. Id. at 32-35. Finally, Defendants argue that Plaintiffs' nuisance claims fail as a matter of law because the injury alleged is common across thousands of people, yet a private nuisance must “threaten[] one person or a relatively few.” Id. at 35-36 (emphasis omitted) (quoting Caldarola v. Town of Smithtown, No. 09-CV-272, 2010 WL 6442698, at *15 (E.D.N.Y. July 14, 2010), adopted, 2010 WL 1336574 (E.D.N.Y. Apr. 4, 2011)).

         Next, Defendants argue that Plaintiffs' personal injury claims essentially assert a separate cause of action for medical monitoring, a claim that has been expressly forbidden by the New York Court of Appeals. Id. at 36-38 (citing Caronia, 5 N.E.3d at 18-19). Instead, under New York law, the availability of medical monitoring damages depends on the existence of an independent tort, which in turn requires a present physical injury. Id. Because, under Defendants' view, the Complaint alleges only “the possibility of future injury, ” Plaintiffs cannot state a claim for personal injury under either a negligence or strict liability theory, and thus cannot recover damages for medical monitoring. Id. at 38-40 (quoting Remson v. Verizon Commc'ns, Inc., No. 07-CV-5296, 2009 WL 723872, at *3 (E.D.N.Y. Mar. 13, 2009)).

         III.LEGAL STANDARD

         To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court must accept as true the factual allegations contained in a complaint and draw all inferences in favor of the plaintiff. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). Plausibility, however, ...


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