Products Liability Law Daily Strict liability claims dismissed, negligence claims remain in case of water contamination by fire-fighting foam
Tuesday, May 22, 2018

Strict liability claims dismissed, negligence claims remain in case of water contamination by fire-fighting foam

By Miriam A. Friedman, J.D.

Residents who allegedly were harmed due to contamination of the public water supply by toxins present in a fire-fighting foam sufficiently pleaded causes of action for negligence and negligent failure to warn and design defect, a federal district court in Pennsylvania found. However, they did not sufficiently plead causes of action for strict liability failure to warn and design defect or medical monitoring, nor did they sufficiently plead property-related damages. The court therefore granted in part and denied in part the motions to dismiss made by the manufacturers of the fire-fighting foam, granting leave for the residents to amend their medical monitoring and property-related damages claims (Menkes v. 3M Co., May 21, 2018, Tucker, P.).

One of the residents, who had been diagnosed with bladder cancer allegedly caused by his exposure to toxic substances in the public water supply, sued Tyco Fire Products LP, Chemguard Inc., Buckeye Fire Protection Company, and 3M Company, manufactures of the fire-fighting foam, Aqueous Film Forming Foam, used at two nearby naval bases. The complaint asserted causes of action for negligence, failure to warn, and design defect and alleged that the resident had incurred medical bills, loss of earnings, impairment of earning capacity, pain, suffering, and mental distress, while his wife suffered the loss of her husband’s companionship and consortium. They further sought medical monitoring, property-related, and punitive damages. The manufacturers moved to dismiss all claims.

Existence of a duty. After balancing the relevant factors, the court concluded that the residents had sufficiently pleaded facts showing that the manufacturers owed a duty to the residents. On the one hand, there was no "discernable" relationship between the parties, and fire-fighting foam had "immense social utility." However, to the extent that the manufacturers could have chosen less harmful surfactants to make an equally effective fire-fighting foam, such a product would have more social utility than fire-fighting foam made with the toxic substances. Furthermore, there was at least some risk of harm that the residents would be exposed to the public water supply, which was found to be contaminated. That is, it was foreseeable that "toxic chemicals used at a particular facility [would] not necessarily remain confined to that facility, especially when those chemicals are in the form of a water-based foam that [could] leach into the groundwater." In addition, the court noted that imposing such a duty with regard to the residents would not create additional costs for manufacturers that already owed a duty to the consumers and users of their products to use reasonable care in manufacturing their products. Finally, the court concluded that the overall public interest in "imposing a duty on manufacturers of fire-fighting foam to produce such foam without toxic chemicals that could harm people in communities where it is used" also weighed in favor of a duty.

Breach of duty as proximate cause of injury. Declining to apply the "remoteness test" suggested by the manufacturers, the court conducted a "traditional proximate cause analysis" and found that at this stage in the proceedings, it could not conclude that "no jury could conclude that the [manufacturers’] conduct was a substantial factor in causing the [residents’] harm."

Property-related damages. The court found that the residents failed to allege that their property had been affected by the contaminated groundwater or contaminated public water supply. Thus, they failed to state a claim for property-related damages because they had not alleged physical damage to their real property.

Loss of consortium claim. In addition, the court noted that the wife’s loss of consortium claim was a derivative claim that was dependent on the success of the husband’s claim. Because a loss of consortium claim "does not arise from purely economic damages, nor does it arise primarily from a contractual agreement between spouses," the economic loss doctrine did not bar this claim.

Punitive damages. The court found that dismissing claims for punitive damages at the pleading stage would be "premature," considering that the residents had adequately stated a claim for such damages based on negligence. As such, they sufficiently pleaded the requirements for punitive damages to proceed to discovery.

Strict products liability claims. The court noted that the Pennsylvania Supreme Court had declined the opportunity to adopt the Third Restatement of Torts, "which would have extended strict products liability to bystanders." Furthermore, even if the court were inclined to allow recovery for some bystanders, "no Pennsylvania federal or state court [had] allowed such a claim where the plaintiff was not in direct proximity to the defective product." Therefore, because the residents were neither users nor consumers of the product in question, their claims for strict products liability had to be dismissed.

Common law products liability claims. With respect to the negligent design defect claim, the court found that the residents had successfully pleaded that the manufacturers owed them a duty, that they breached that duty in manufacturing the product in question, and that such negligence caused their injuries. As for the negligent failure to warn claim, the residents also successfully pleaded that the manufacturers owed them a duty, that they breached that duty by failing to warn the users of the product about its harmful effects on human health and the environment, and that such negligence caused the residents’ injuries.

Medical monitoring claim. The court also determined that although the residents had sufficiently pleaded some of the statutory elements required to support a medical monitoring claim, "their allegations [did] not even generally state" several of the required elements. That is: there was no allegation "that a monitoring procedure exist[ed] to make detection of any serious latent disease possible," no allegation "that a prescribed monitoring regime would be different from that normally recommended," and no allegation "that such a monitoring regime would be reasonably necessary according to contemporary scientific principles." As such, the court stated, the residents had "merely tack[ed]" medical monitoring onto a "long list of damages," which was not sufficient to state a claim for medical monitoring.

Statute of limitations. The court found that the complaint was timely because although the husband had been diagnosed with bladder cancer more than two years prior to filing suit, the residents "did not ascertain the cause of such injury until more recently," when they learned of the contamination of the public water supply and determined the cause of their injuries to have been exposure to the toxin that had been used in the fire-fighting foam.

Leave to amend. Because the residents were not users or consumers of the product in question, the court found that no additional facts they could have pleaded would have enabled them to state a claim for strict products liability. However, because additional facts might have enabled them to state claims for medical monitoring and property-related damages, the court granted leave to amend those claims.

The case is No. 17-0573.

Attorneys: Mark R. Cuker (Williams & Cuker) for Larry Menkes and Jacquelyn Menkes. Basil A. Disipio (Lavin O'Neil Cedrone & Disipio) and Richard F. Bulger (Mayer Brown LLP) for 3M Co. f/k/a Minnesota Mining & Manufacturing Co. Philip M. Colicchio (Taylor Colicchio LLP) and Michael L. Carpenter (Gray Layton Kersh Solomon Furr & Smith PA) for Buckeye Fire Equipment Co. David S. Weinraub (Quinn Emanuel Urquhart & Sullivan, LLP) and Joseph H. Blum (Shook Hardy & Bacon, LLP) for Chemguard, Inc.

Companies: 3M Co. f/k/a Minnesota Mining & Manufacturing Co.; Buckeye Fire Equipment Co.; Chemguard, Inc.

MainStory: TopStory DesignManufacturingNews WarningsNews CausationNews DamagesNews SofLReposeNews ChemicalNews PennsylvaniaNews

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