Products Liability Law Daily Absence of foreseeable harm nets judgment for PCB-containing product maker
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Monday, December 11, 2017

Absence of foreseeable harm nets judgment for PCB-containing product maker

By Georgia D. Koutouzos, J.D.

A manufacturer of plasticizers made with polychlorinated biphenyls (PCBs) was not liable for contamination arising from the use of the plasticizers in the caulk used in a school building constructed in 1969, a federal appellate panel determined, affirming the Massachusetts federal court’s grant of summary judgment favoring the manufacturer in a product liability lawsuit filed by the town in which the school is situated. The company did not breach the implied warranty of merchantability because it was not reasonably foreseeable in 1969 that there was a risk that PCBs would volatilize from caulk at levels dangerous to human health, the panel reasoned, adding that a negligent marketing claim also could not be maintained independent of a design defect claim on those facts (Town of Westport v. Monsanto Co., December 8, 2017, Lynch, S.).

The Town of Westport, Massachusetts, filed suit against Monsanto Company and other related entities, alleging that one of the town’s school buildings (Westport Middle School) was contaminated with PCBs from plasticizers produced by the defendants and used in caulk formulations provided by a third party to the school’s construction contractor. Although Monsanto did not manufacture the caulk at issue, it sold plasticizers—a component of caulk—to the third-party manufacturer that did. Westport’s complaint alleged: (1) breach of the implied warranty of merchantability for defective design; (2) breach of the implied warranty of merchantability for failure to warn; (3) negligence; (4) public nuisance; (5) private nuisance; (6) trespass; and (7) violation of state environmental laws. The town sought compensatory damages—including the costs of investigating, sampling, testing, and assessing the extent of PCB contamination at the school and the costs of removing PCBs and PCB-containing materials from school property.

The federal trial court in Massachusetts entered judgment against Westport on all alleged counts of tort liability [see Products Liability Law Daily’s April 10, 2017 analysis]. The town appealed the trial court’s ruling, challenging only the entry of judgment against it on the breach of warranty and negligent marketing claims.

Breach of the implied warranty of merchantability. Westport argued that because it had brought a claim for property damage, the correct inquiry was whether, as of 1969, it was foreseeable that there was a risk that PCBs would volatilize out of caulk, not whether they would do so at levels harmful to human health. But the town’s argument missed the point: the trial court did not hold that a property damage claim only could be brought when there was a risk to human health; it merely ruled that the PCB contamination in the case at bar needed to rise to a level requiring remediation—i.e., a level harmful to human health—in order to qualify as property damage.

Only PCB contamination levels sufficient to pose a health risk warrant remediation, and the town admitted that the presence of PCBs would not be considered "contamination" if they were benign substances. Given that PCBs are invisible to the naked eye and lack a characteristic odor or appearance to alert users of their presence, their only deleterious effect is their potential harm to health. In other words, no remediation is necessary—and hence, no property damage results—unless the PCB contamination in a building poses an actual health risk. Therefore, the trial court applied the correct standard of foreseeability in the instant case, i.e., whether Monsanto should have reasonably known, in 1969, that there was a risk that PCBs would volatilize out of caulk at levels harmful to human health.

As for Westport’s further contention that even if the trial court’s standard of foreseeability was correct, the evidence on record was sufficient to defeat summary judgment because PCBs were known, as of 1969, to cause adverse health effects and to volatilize from paints and resins at elevated levels. As such, there was a genuine dispute as to whether it was reasonably foreseeable that PCBs in caulk would pose a health risk, the town asserted. Based on the evidence presented, however, Westport failed to proffer any scientific studies evidencing a risk that PCBs volatilize from caulk at harmful concentrations when inhaled, much less that such a risk was known before 1969. Nor did the town point to other evidence in the record supporting that conjecture. In fact, the evidence unequivocally supported the conclusion that the risk that PCBs would volatilize from caulk at harmful levels was not reasonably foreseeable in 1969.

As such, the trial court did not engage in improper credibility determinations or weighing of the evidence when it found that the town’s reliance on inferences was insufficient to defeat summary judgment. The trial court merely determined that a reasonable fact-finder could not rule for Westport because there was no evidence in the record, from either 1969 or the present day, that PCBs volatilize from caulk at levels harmful to human health. Consequently, the trial court correctly entered judgment against Westport’s breach of warranty claim for failure to warn. Finally, judgment was correctly entered against the town’s post-sale failure to warn claim because the town’s assertion that the middle school was an identifiable end user was mere speculation.

Negligent marketing. Although Westport also contested the entry of judgment against its negligent marketing claim, no court applying Massachusetts law ever has explicitly held that a negligent marketing claim could be maintained independently of a design defect claim. Therefore, because Westport did not challenge the entry of judgment against its design defect claim, the town could not maintain its cause of action for negligent marketing.

In sum, Monsanto did not breach the implied warranty of merchantability because it was not reasonably foreseeable in 1969 that there was a risk that PCBs would volatilize from caulk at levels requiring remediation—i.e., levels dangerous to human health. Additionally, as a matter of state law, a negligent marketing claim could not be maintained independent of a design defect claim on those facts. Accordingly, the trial court’s entry of judgment against the town was affirmed.

The case is No. 17-1461.

Attorneys: Carla Burke Pickrel (Baron & Budd PC) for Westport, MA and Westport Community Schools. Brandon L. Arber (White & Williams LLP) for Monsanto Co. and Solutia, Inc.

Companies: Westport, MA; Westport Community Schools; Monsanto Co.; Solutia, Inc.

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