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Benoit v. Saint-Gobain Performance Plastics Corp.

United States District Court, N.D. New York

August 2, 2017

THELMA BENOIT, et al., Plaintiffs,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al, Defendants. CHRISTINE JENSEN, et al., Plaintiffs,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al., Defendants. DOUGLAS HOLMSTEDT, et al., Plaintiffs,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al, Defendants. BEVERLY WHITE, et al., Plaintiffs,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al, Defendants. ARNOLD BULLINGER, et al., Plaintiffs,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al, Defendants. RANDALL PUTNAM, Plaintiff,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al., Defendants. PATRICIA ORMSBEE, Plaintiff,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al., Defendants. DOUGLAS SMITH, Plaintiff,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al., Defendants. CHERYL RIOS, et al., Plaintiffs,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al, Defendants. EDWARD FROMMER, Plaintiff,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al., Defendants. JANET VAN DER KAR, Plaintiff,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al., Defendants. SUZANNE I. BAKER, Plaintiff,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP, et al., Defendants. KENNETH CROSS II, et al., Plaintiffs,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al., Defendants. MARTHA CAMPBELL, Plaintiff,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al., Defendants. STEVEN CHURCH, et al., Plaintiffs,
v.
SAINT-GOBAIN PERFORMANCE PLASTICS CORP., et al., Defendants. CYNTHIA BODENSTAB, 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

         These sixteen consolidated cases[1] stem from the contamination of groundwater with perfluorooctanoic acid, or PFOA, in the Village of Hoosick Falls, New York. E.g., Dkt. No. 1 ("Complaint") ¶ 1. In their individual complaints, Plaintiffs allege that defendants Saint-Gobain Performance Plastics Corp. and Honeywell International Inc. contaminated the Village's groundwater by discharging PFOA from one or more manufacturing facilities they operated within the Village. E.g., Compl. ¶¶ 34-80. 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. ¶¶ 59, 74-77, 104-05. Additionally, Plaintiffs allege that consumption of contaminated water has caused PFOA to accumulate in Plaintiffs' blood serum and bodies. E.g., id. ¶¶ 8-9. A number suits concerning this contamination have been filed in this district, including a putative class action on behalf of all Village residents, as well as individuals who drank contaminated water and exhibit a heightened blood-serum level of PFOA. Baker v. Saint-Gobain Performance Plastics Corp., No. 16-CV-917 (N.D.N. Y.) (Kahn, J.).

         Currently before the Court is Defendants' consolidated motion to dismiss for failure to state a claim. Mot.; see also Dkt. No. 21-2 ("Memorandum"). Plaintiffs filed a consolidated opposition, Dkt. No. 28 ("Opposition"), and Defendants submitted a Reply, Dkt. No. 29 ("Reply"). 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, [2] which are assumed to be true when deciding a motion to dismiss for failure to state a claim. Bryant v. N.Y. State Educ. Dep't, 692 F.3d 202, 210 (2d Cir. 2012).

         A. PFOA

         PFOA is a man-made chemical "that belongs to a group of fluorine-containing chemicals ... used to make household and commercial products that resist heat and chemical reactions, and repel oil, stains, grease, and water." Compl. ¶ 21. Originally manufactured by the 3M Company, PFOA has been "widely used in nonstick cookware, in surface coatings for stain-resistant carpets and fabric, and in paper and cardboard food packaging (such as microwave popcorn bags and fast food containers)." Id. ¶¶ 22-23.

         "PFOA can remain in the environment, particularly in water, for many years [and] can move through soil and into groundwater, or be carried in air." Id. ¶ 30. The chemical "is readily absorbed after consumption or inhalation, and it accumulates primarily in the blood stream, kidney and liver." Id. ¶ 26. Plaintiffs claim that PFOA "pose[s] potential adverse effects to human health and the environment, " id. ¶ 33, and note that

[h]uman studies show associations between increased PFOA levels in blood and an increased risk of several health effects, including effects on the liver, the immune system, high cholesterol levels, increased risk of high blood pressure, changes in thyroid hormone, ulcerative colitis (autoimmune disease), pre-eclampsia (a complication of pregnancy that includes high blood pressure), and kidney and testicular cancer,

id. ¶ 31. These health conditions "can arise months or years after exposure to PFOA." Id. ¶ 32.

         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 a health advisory for drinking water of seventy parts per trillion (or ppt). Id. ¶ 28. The health advisory level (70 ppt) suggests that individuals should avoid ingesting drinking-water with greater levels of PFOA and is based on the EPA's "assessment of the best available peer-reviewed science." Id.

         B. The Contamination of Hoosick Falls

         Hoosick Falls is a village in upstate New York with approximately 4, 500 residents. Id. ¶¶ 1, 49. Since at least the late 1960s, manufacturing facilities in and around the Village have used PFOA. Id. ¶¶ 37, 39. Plaintiffs allege that a small factory at 14 McCaffrey Street is the primary source of Hoosick Falls's PFOA contamination. Id. ¶¶ 2, 47. In 1986, the McCaffrey Street facility came to be owned by AlliedSignal, which later adopted Honeywell's name after a merger. Id. ¶¶ 18, 35. In 1996, Honeywell sold the facility to a company called Furon, which was acquired by Saint-Gobain in 1999. Id. ¶ 35. Saint-Gobain owns the facility to this day. Id. ¶ 36.

         Defendants manufactured water- and stain-resistant fabric at the McCaffrey Street site, applying a PFOA solution to the fabric in large trays. Id. ¶¶ 37-40. Defendants' employees recovered most of this solution at the end of each shift. Id. ¶ 40. However, employees also washed the trays and poured the resulting discharge down floor drains in the facility. Id. ¶ 41. As a result of this practice, PFOA flowed 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. ¶¶ 44-46. In connection with this activity, Defendants' employees again discharged PFOA down storm drains, causing it to migrate into the soil and aquifer. Id. ¶ 47. The Complaint also alleges that Defendants "discharged PFOA into the environment in other ways." Id. ¶ 48.

         Approximately 95% of Hoosick Falls residents receive drinking water from the Village's municipal water system, which gathers its water from three wells. Id. ¶¶ 49-50. Other residents receive drinking water from private wells. Id. ¶ 53.

         In 2014 and 2015, the Village conducted several tests showing high levels of PFOA in its municipal wells. Id. ¶¶ 51-58. These tests showed PFOA concentrations ranging from 150 to 662 ppt. Id. ¶ 52. As noted above, the EPA has advised against using water supplies with concentrations greater than 70 ppt. Id. ¶¶ 28, 55. Tests of private wells revealed PFOA concentrations "as high as 412 [ppt]." Id. ¶ 53. Groundwater wells near the McCaffrey Street facility "tested as high as 18, 000 [ppt]." Id. ¶ 54.

         In November 2015, the EPA Region 2 Administrator recommended that Hoosick Falls residents use an alternative water source rather than drinking contaminated groundwater. Id. ¶ 58. Apparently, the Village did not heed this warning because the EPA repeated its recommendation on December 17, 2015. Id. ¶ 62. Shortly thereafter, Saint-Gobain began to provide free bottled water to Village residents and agreed to fund the installation of a filter system on the municipal supply. Id. ¶ 63.

         On January 14, 2016, the New York Department of Environmental Conservation ("DEC") requested that the EPA investigate the origin of the contamination and add Hoosick Falls to the National Priorities List under the federal Super fund program. Id. ¶ 64. On January 27, 2016, Governor Andrew Cuomo announced that the McCaffrey Street facility would be classified as a state Super fund site, and that the State was classifying PFOA as a hazardous substance. Id. ¶ 66. In February 2016, the DEC identified Defendants as the parties responsible for the Village's PFOA contamination. Id. ¶ 67. In June 2016, Defendants entered into two consent orders with the DEC. Id. ¶ 79. The consent orders required Defendants to investigate the causes and scope of the contamination, identify a feasible alternative water supply for the Village, fund the installation of municipal filtration systems, and provide bottled water to residents until the filtrations systems were installed. Id.

         The PFOA contamination has had additional effects on homeowners in Hoosick Falls. As alleged in the Complaint, "[t]he water contamination in Hoosick Falls has made properties in the area less marketable and resulted in significant property devaluation." Id. ¶ 75. Homeowners have also faced difficulty obtaining financing because banks have "cut back and/or cease[d] mortgage and refinancing activities in and around Hoosick Falls for fear of future property devaluation and/or the lack of access to potable water." Id. ¶ 76.

         As discussed further below, not all plaintiffs allege current manifestation of disease or symptoms related to PFOA exposure, but Plaintiffs note that "no medical studies have been done in Hoosick Falls regarding the PFOA contamination." Id. ¶ 61.

         C. Plaintiffs' Injuries

         The individual complaints allege two main sources of harm: damage to the Plaintiffs' property and personal injury from their ingestion of PFOA. Both are discussed in turn below.

         1. Property Damage

         As a part of the injury alleged for Plaintiffs' negligence, trespass, strict liability, and nuisance claims, Plaintiffs argue that the PFOA pollution caused harm to real property they either own or rent. Id. ¶¶ 104, 108, 121, 130-31, 139. 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. ¶¶ 100-01, 115-16, 125-26, 135-38. 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. E.g., id. 14 ¶ 108.

         Perhaps the largest source of damages is an alleged loss in Plaintiffs' property values. E.g., id. ¶ 121. As noted earlier, Plaintiffs allege that PFOA contamination "has made properties in the area less marketable and resulted in significant property devaluation." Id. ¶ 75. The individual complaints seek monetary damages to compensate Plaintiffs for "the difference between the current value of their property and such value if the harm had not been done." Id. ¶ 108. Of course, these damages are applicable only to those plaintiffs who own real property in Hoosick Falls. For ease of reference, the plaintiffs who own their own homes are Thelma and David Benoit, id. ¶ 7, Christine and James Jensen, Jensen Compl. ¶ 7, Douglas and Debra Holmstedt, Holmstedt Compl. ¶ 7, Beverly and Roger White, White Compl. ¶ 7, Randall Putnam, Putnam Compl. ¶ 7, Patricia Ormsbee, Ormsbee Compl. ¶ 7, Douglas Smith, Smith Compl. ¶ 7, Cheryl and Robert Rios, Rios Compl. ¶ 7, Janet Van Der Kar, Van Der Kar Compl. ¶ 60, Edward Frommer, Frommer Compl. ¶ 7, Suzanne Baker, Baker Compl. ¶ 7, Kenneth Cross II and Ceilo Cross, Cross Compl. ¶ 7, Martha Campbell, Campbell Compl. ¶ 7, Mary Schmigel, Bryan Schrom, Kary Schrom, and Margaret Sargood, Bodenstab Compl. ¶¶ 10, 16, 22 ("Property Owner Plaintiffs"), and the plaintiffs who rent are Arnold Bullinger, Travis Conquest, Bullinger Compl. ¶¶ 7, 10, Steven and Sharon Church, Church Compl. ¶¶ 7, 10, and Cynthia Bodenstab, Bodenstab Compl. ¶ 7 ("Renter Plaintiffs").[3]

         It is also important to distinguish between plaintiffs who use the Village's municipal water supply and those who utilize private wells. As explained below, whether a plaintiff uses the municipal supply will determine whether they have adequately pleaded certain claims. For ease of reference, the plaintiffs who receive water from the municipal water supply are Douglas and Debra Holmstedt, Holmstedt Compl. ¶ 7, Beverly and Roger White, White Compl. ¶ 7, Arnold Bullinger, Travis Conquest, Brett Ferraro, Bullinger Compl. ¶¶ 7, 10, 66, Randall Putnam, Putnam Compl. ¶ 7, Patricia Ormsbee, Ormsbee Compl. ¶ 7, Douglas Smith, Smith Compl. ¶ 7, Cheryl and Robert Rios, Rios Compl. ¶ 7, Janet Van Der Kar, Van Der Kar Compl. ¶ 60, Edward Frommer, Frommer Compl. ¶ 7, Suzanne Baker, Baker Compl. ¶ 7, Kenneth Cross II and Ceilo Cross (individually and on behalf of their child, R.D.C.), Cross Compl. ¶ 7, Martha Campbell, Campbell Compl. ¶ 7, Steven and Sharon Church, Church Compl. ¶¶ 7, 10, Cynthia Bodenstab, Mary Schmigel, Michael Schmigel, Bryan Schrom, Kary Schrom, Kevin Schrom, Nickolas Schrom, Margaret Sargood, Lisa Tifft, and Ruth Tifft, Bodenstab Compl. ¶¶ 7, 10, 13, 16, 22, 25, 28 (collectively, the "Municipal Water Plaintiffs"), and the plaintiffs with private wells are Thelma and David Benoit, Compl. ¶ 7, and Christine and James Jensen, Jensen Compl. ¶ 7 (collectively, the "Private Well Plaintiffs").

         2. Personal Injury

         Plaintiffs also seek relief stemming from their consumption of the PFOA-contaminated water. According to the Complaint, Plaintiffs have "been exposed to high levels of PFOA, " an exposure that resulted in "elevated levels of PFOA in [their] blood, " placing them "at an increased risk of several health effects, including but not limited to effects on the liver and immune system, high cholesterol levels, changes in thyroid hormone, and kidney and testicular cancer." Compl. ¶ 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. ¶¶ 28-33. In response to this risk, Plaintiffs seek consequential damages and injunctive relief to either fund or provide medical monitoring. Id. ¶ 108.[4]

         Not every plaintiff claims an increased level of PFOA in her blood. The plaintiffs who allege heightened blood-serum levels of PFOA are Thelma and David Benoit, Compl. ¶¶ 8-9, Christine and James Jensen, Jensen Compl. ¶¶ 8-9, Douglas and Debra Holmstedt, Holmstedt Compl. ¶¶ 8-9, Beverly and Roger White, White Compl. ¶¶ 8-9, Patricia Ormsbee, Ormsbee Compl. ¶ 8, Arnold Bullinger, Travis Conquest, Brett Ferraro, Bullinger Compl. ¶¶ 7, 10, 14, Cheryl and Robert Rios, Rios Compl. ¶ 8-9, Steven and Sharon Church, Church Compl. ¶¶ 8, 11, Kenneth Cross II and Ceilo Cross (individually and on behalf of their child, R.D.C.), Cross Compl. ¶ 8, 10, 12, Janet Van Der Kar, Van Der Kar Compl. ¶ 8, Suzanne Baker, Baker Compl. ¶ 8, Cynthia Bodenstab, Mary Schmigel, Michael Schmigel, Bryan Schrom, Kary Schrom, Kevin Schrom, Nickolas Schrom, Margaret Sargood, Lisa Tifft, and Ruth Tifft, Bodenstab Compl. ¶¶ 8, 11, 14, 17-20, 23, 26, 29 (collectively, the "Accumulation Plaintiffs"). On the other hand, Douglas Smith, Smith Compl. ¶ 8, Randall Putnam, Putnam Compl. ¶ 8, Martha Campbell, Campbell Compl. ¶ 8, and Edward Frommer, Frommer Compl. ¶ 8 (collectively, the "Non accumulation Plaintiffs") do not allege any heightened blood concentration of PFOA.

         Importantly, several plaintiffs allege to suffer from diseases or symptoms they claim were caused by PFOA exposure. Plaintiffs Douglas and Debra Holmstedt have high blood pressure. Holmstedt Compl. ¶¶ 8-9. Beverly White "suffers from kidney problems [and] high cholesterol." White Compl. ¶ 8. Douglas Smith has "high blood pressure requiring him to take medication." Smith Compl. ¶ 8. Arnold Bullinger "has been diagnosed with guttate psoriasis, has kidney problems, high blood pressure, high cholesterol." Bullinger Compl. ¶ 8. Edward Frommer has kidney disease and high cholesterol and blood pressure. Frommer Compl. ¶ 8. Suzanne Baker has been diagnosed with cancer. Compl. ¶ 8. Finally, Cynthia Bobenstab, Mary and Michael Schmigel, Bryan Schrom, and Margaret Sargood each have high blood pressure, while Michael Schmigel and Bryan Schrom also suffer from high cholesterol, and Mary Schmigel and Margaret Sargood have high cholesterol and thyroid disease. Bodenstab Compl. ¶¶ 8, 11, 14, 17, 23. These plaintiffs are referred to as the "Symptomatic Plaintiffs."[5]

         D. Defendants' Motion

         After the sixteen individual complaints were filed, Saint-Gobain and Honeywell moved to dismiss each 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 ...


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