United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN U.S. DISTRICT JUDGE.
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.
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,
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,
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”). For the following reasons, Defendants'
Motion is granted in part and denied in part.
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).
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,
(last accessed Jan. 19, 2017).
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.
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.
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) 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. Following the EPA's actions
concerning PFOA, several states have established similar
health advisories and guidelines. Id. ¶¶
Contamination of Hoosick Falls
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.
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.
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.
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.
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.
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.
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.
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.
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. ¶
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.
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. 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
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.
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. 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.
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. These are
discussed in turn below.
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).
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
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.
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.
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
the consolidated complaint was filed in this action,
Saint-Gobain and Honeywell moved to dismiss the Complaint for
failure to state a claim. Mot. 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.
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)).
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)).
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, ...