United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge.
sixteen consolidated cases 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.).
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.
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. Bryant
v. N.Y. State Educ. Dep't, 692 F.3d 202, 210 (2d
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.
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
id. ¶ 31. These health conditions "can
arise months or years after exposure to PFOA."
Id. ¶ 32.
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.
The Contamination of Hoosick Falls
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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
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 ...