United States District Court, E.D. Pennsylvania
LARRY MENKES, ET. AL., PLAINTIFFS,
3M COMPANY, ET AL., DEFENDANTS.
instant action arises out of Plaintiffs' allegations that
Defendants manufactured and sold a product containing toxic
chemicals, which allegedly infiltrated the public water
supply, resulting in harm to Plaintiffs' health and
the Court are Defendants Tyco Fire Products LP's and
Chemguard Inc.'s Motion to Dismiss Complaint (Doc. 11),
Motion on Behalf of Defendant Buckeye Fire Protection Company
to Dismiss the Plaintiffs' Complaint Pursuant to Federal
Rule of Civil Procedure 12(b)(6) (Doc. 12), Defendant 3M
Company's Motion to Dismiss Plaintiffs' Complaint
(Doc. 13), Plaintiffs' Memorandum of Law in Opposition to
Defendants' Motion to Dismiss the Complaint (Doc. 30),
Defendants Tyco Fire Products LP's and Chemguard
Inc.'s Reply (Doc. 34), and Defendant 3M Company's
Reply (Doc. 36). Defendant National Foam, Inc. has filed no
motion or answer in this matter.
careful consideration of the parties' submissions, and
for the reasons set forth below, Defendants' Motions are
GRANTED IN PART AND DENIED IN PART.
AND PROCEDURAL BACKGROUND
are a married couple who have lived in Warminster,
Pennsylvania since 1987. Compl. ¶¶ 1-3, Doc. 1.
Defendants are all manufacturers of fire-suppression
products. Compl. ¶¶ 17, 21.
allege the following:
Film Forming Foam (“AFFF”) is a fire-fighting
foam manufactured by Defendants. Compl. ¶¶ 17, 21.
Defendants sold AFFF to the United States Department of the
Navy (“Navy”) for use at Willow Grove Naval Air
Station Joint Reserve Base in Horsham Township, Pennsylvania,
and the former Naval Air Warfare Center in Warminster
Township, Pennsylvania (“Bases”). Compl.
¶¶ 42, 46. The AFFF manufactured by Defendants
contained perfluorochemicals (“PFCs”) believed to
include perfluoroctanesulfonic acid (“PFOS”) and
perfluorooctanoic acid (“PFOA”), and/or other
PFCs that degrade into PFOS and/or PFOA. Compl. ¶¶
allege that PFOS/PFOA degrade very slowly in the environment
and can leach through soil, polluting groundwater and
remaining in the environment for decades. Compl. ¶¶
24-25. PFOS/PFOA-contaminated water may not be sanitized by
boiling the water or using disinfectants like chlorine.
Compl. ¶ 6. Once PFOS/PFOA-contaminated water is
ingested, it can remain in the human body for years. Compl.
¶¶ 27, 39. PFOS/PFOA are considered toxic and are
associated with health risks even when ingested at low
levels. Compl. ¶¶ 30-31. PFOS/PFOA exposure is
associated with increased risk of testicular cancer, bladder
cancer, kidney cancer, prostate cancer, multiple myeloma,
thyroid disease, high cholesterol, ulcerative colitis,
pregnancy-incused hypertension, non-Hodgkin lymphoma, and
increased uric acid. Compl. ¶ 32.
allege that each Defendant manufactured and sold AFFF
pursuant to the Navy's Military Specification
MIL-F-24385. Compl. ¶ 42. Military Specification
MIL-F-24385 set the performance standards for AFFF to be sold
to the military and required that AFFF “have no adverse
effect on the health of personnel when used for its intended
purpose.” Compl. ¶¶ 39, 40, 43. According to
Plaintiffs, Defendants manufactured and sold AFFF containing
PFOS/PFOA for use at the Bases when they knew or should have
known the AFFF would have adverse effects on the health of
persons in surrounding communities. Compl. ¶¶
47-49. Plaintiffs allege that Defendants failed to warn of
the adverse health effects of AFFF when Defendants knew or
should have known that the AFFF would have adverse health
effects when used for its intended purposes. Compl. ¶
decades, the military used AFFF in training exercises and as
protection for aircraft hangars. Compl. ¶¶ 56-60.
Training exercises required suppressing fires on the ground
and coating runways in anticipation of aircraft landings,
which resulted in soil contamination with PFOS/PFOA. Compl.
¶ 61. In addition, the ceiling units in aircraft hangars
containing gallons of AFFF experienced accidental discharges,
which resulted in the product being washed down the drain and
contaminating groundwater. Compl. ¶ 62. Plaintiffs
allege that PFOS/PFOA, thus, contaminated the drinking water
in the area surrounding the Bases, exposing residents to
toxic chemicals in their drinking, cooking, and bathing
water. Compl. ¶ 66.
2012, the Environmental Protection Agency (“EPA”)
included PFOS/PFOA on a contaminant monitoring list,
requiring water providers to test for the presence of the
chemicals. Compl. ¶ 75. In 2013-2014, the Warminster
Public Authority tested its wells and found PFOS levels
ranging from 40 parts per trillion (“ppt”) to
1090 ppt and PFOA levels ranging from 20 ppt to 890 ppt.
Compl. ¶ 76. The Authority closed six (6) of its wells
due to contamination. Compl. ¶ 76. In May 2016, the EPA
set its Health Advisory for Lifetime Exposure to PFOA and
PFOS at 70 ppt. Compl. ¶ 77. As a result of the well
testing and announcement of the exposure limit, many
residents, including Plaintiffs, learned that their drinking
supply was contaminated with PFOS and/or PFOA. Compl. ¶
Larry Menkes was diagnosed with bladder cancer in 2011.
Compl. ¶ 97. Plaintiffs allege Mr. Menkes's
condition is the result of his exposure to PFOS/PFOA in
Warminster's public water supply. Compl. ¶ 97. As a
result of this exposure, Mr. Menkes claims to have incurred
substantial medical bills, loss of earnings, impairment of
earning capacity, pain, suffering, and mental distress.
Compl. ¶ 99. Mrs. Menkes claims to have suffered the
loss of her husband's companionship and consortium.
Compl. ¶ 100.
bring three causes of action: negligence, failure to warn,
and design defect. Additionally, Plaintiffs seek, inter
alia, medical monitoring, property-related, and punitive
damages. Compl. ¶¶ 122, 124.
STANDARD OF REVIEW
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain sufficient
factual matter to state a claim for relief that is
“plausible on its face.” Sheridan v. NGK
Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). When presented with a motion to dismiss for failure
to state a claim, district courts must conduct a three-part
analysis. See Santiago v. Warminster Twp., 629 F.3d
121, 130 (3d Cir. 2010) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). First, the court
must take note of the elements a plaintiff must plead to
state a claim. Santiago, 629 F.3d at 130. Second,
the court must identify allegations that are not entitled to
the assumption of truth because they “are no more than
conclusions.” Id. Finally, the court must
assume well- pleaded factual allegations to be true, and
determine whether they “plausibly give rise to an
entitlement for relief.” Id.
Rule of Civil Procedure 8(a)(2) requires only a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, a
“formulaic recitation of the elements of a cause of
action” will not be sufficient to meet this standard.
McTernan v. City of York, 564 F.3d 636, 646 (3d Cir.
2009). Rule 8 requires a showing of “enough facts to
raise a reasonable expectation that discovery will reveal
evidence” supporting the claim. Id. “A
complaint may not be dismissed merely because it appears
unlikely that the plaintiff can prove those facts or will
ultimately prevail on the merits.” Id.
move to dismiss Plaintiffs' Complaint asserting causes of
action for negligence (Count One), failure to warn (Count
Two), and design defect (Count Three). The Court finds that
Plaintiffs have sufficiently pled a cause of action for
negligence. The Court also finds that Plaintiffs have
sufficiently pled a cause of action for failure to warn and
design defect in negligence. However, the Court finds that
Plaintiffs have not sufficiently pled a cause of action for
failure to warn and design defect in strict liability or
medical monitoring. The Court further finds that Plaintiffs
have not sufficiently pled the asserted property-related
damages. The Court grants leave for Plaintiffs to amend their
medical monitoring claim and property-related damages claim.
Plaintiffs' Negligence Claim (Count One)
state a claim for negligence, Plaintiffs must plead:
“ the presence of a legal duty or obligation;  a
breach of that duty;  a causal link between that breach
and the injury alleged; and  actual damage or loss
suffered . . . as a consequence.” Wright v.
Eastman, 63 A.3d 281, 284 (Pa. Super. Ct. 2013).
Defendants do not appear to dispute that Plaintiffs have
alleged a breach of a duty, or that Plaintiffs have pled
actual damages in the form of personal injury. Therefore, at
issue here is the presence of: (1) a legal duty or
obligation, and (2) a causal link between that breach and the
Plaintiffs' Allegations Sufficiently Support The
Existence Of A Duty
Buckeye Fire Protection Company (“Buckeye”)
argues that it did not owe a duty to Plaintiffs because it
was not reasonably foreseeable that Defendants' product
would come into contact with Plaintiffs. Buckeye's Mot.
Dismiss 7, Doc. 12. Buckeye argues that Plaintiffs failed to
specify whether their particular water supply was within a
certain proximity to the Bases or allege any facts to show
that their water supply was affected by groundwater
contamination caused by activities on the Bases.
Buckeye's Mot. Dismiss 7-8. Therefore, Buckeye contends
it did not owe Plaintiffs a duty because the facts pled are
insufficient to show that it was reasonably foreseeable that
Plaintiffs would come into contact with its product.
Buckeye's Mot. Dismiss 7.
3M Company (“3M”) argues that it did not owe a
duty to Plaintiffs because 3M and Plaintiffs had no
relationship, and Plaintiffs have failed to plead facts to
show their injuries were reasonably foreseeable. 3M's
Mot. Dismiss 12-13, Doc. 13. 3M contends that in the absence
of a relationship between the parties, duty is limited to
risks that are reasonably foreseeable. 3M's Mot. Dismiss
12. 3M argues that the Complaint contains only speculative
and conclusory statements that provide no plausible basis for
the inference that 3M's manufacture and sale of AFFF to
the Navy would harm Plaintiffs. 3M's Mot. Dismiss 13.
argue that Defendants owed them a duty of care because it was
reasonably foreseeable that Defendants' products would
injure Plaintiffs. Pls.' Mem. Law in Opp'n to
Defs.' Mot. Dismiss 9-10, Doc. 30. Plaintiffs contend
they have sufficiently pled that Defendants knew or should
have known the AFFF contained PFOS/PFOA that have negative
health effects, that the use of AFFF in fighting fires would
cause PFOS/PFOA to contaminate the groundwater, and that
users of drinking water supplied by the contaminated
groundwater would be exposed to PFOS/PFOA. Pls.' Mem. Law
in Opp'n to Defs.' Mot. Dismiss 10-11.
a duty exists is a question of law. Kleinknecht v.
Gettysburg College, 989 F.2d 1360, 1366 (3d Cir. 1993).
To determine whether a duty exists, a court applying
Pennsylvania law must weigh several factors, including: (1)
the relationship between the parties; (2) the social utility
of the actor's conduct; (3) the nature of the risk
imposed and foreseeability of the harm incurred; (4) the
consequences of imposing a duty upon the actor; and (5) the
overall public interest in the proposed solution. Althaus
v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000). No. individual
factor is dispositive, rather, “a duty will be found to
exist where the balance of these factors weighs in favor of
placing such a burden on a defendant.” Citizens
Bank of Pa. v. Reimbursement Techs., Inc., 609 Fed.Appx.
88, 92 (3d Cir. 2015). Consistent with its standard of
review, the Court will consider whether a duty exists
assuming the facts stated in Plaintiffs' Complaint are
first factor requires the Court to consider the relationship
between the parties. Althaus, 756 A.2d at 1169. The
relationship between the parties does not have to be a
specific, legally-defined relationship. Charlie v. Erie
Ins. Exch., 100 A.3d 244, 252 (Pa. Super. Ct. 2014).
However, where courts have found no discernable relationship
between plaintiff and defendant, this factor weighs against
the existence of a duty. See Berrier v. Simplicity Mfg.,
Inc., 563 F.3d 38, 40, 62 (3d Cir. 2009) (finding
relationship factor weighed against a duty where a child was
injured when her grandfather backed over her foot while using
lawnmower manufactured by a defendant that lacked
“back-over” protection); Phillips v. Cricket
Lighters, 841 A.2d 1000, 1009 (Pa. 2003) (finding
relationship factor weighed against a duty where a
child's use of a lighter manufactured by a defendant
resulted in a fatal house fire). In this case, there is no
discernable relationship between the parties. The pleadings
show that Defendants sold AFFF directly to the Navy for use
on the Bases, but had no relationship, contractual or
otherwise, with Plaintiffs. This factor therefore weighs
against finding a duty.
second factor requires an examination of the social utility
of Defendants' conduct. Althaus, 756 A.2d at
1169. In Althaus, the Pennsylvania Supreme Court
considered whether a therapist who treats a child for alleged
parental sexual abuse owes a duty of care to that child's
parents. Id. at 1167. The court found that
therapists who treat sexually abused children perform a
valuable and useful activity to society, and social utility,
therefore, disfavored expanding a therapists' duty of
care to non-patients, and especially accused abusers.
Id. at 1170. In Phillips, the Pennsylvania
Supreme Court considered the social utility of a butane
lighter without child safety features and determined that
such a device did not have as much social utility as one with
child safety features. Phillips, 841 A.2d at 1009.
The court determined this factor weighed in favor of finding
a duty. Id. In Charlie, the Pennsylvania
Superior Court considered whether a restaurant owed a duty to
prevent its greasy rags from spontaneously combusting in a
laundromat's dryer. Charlie, 100 A.3d at 247.
The court found that the social utility of laundering rags
had relatively minimal societal impact, and concluded the
factor did not weigh in favor or against. Id. at
the conduct at issue is Defendants' choice to manufacture
fire-fighting foam with allegedly toxic perfluorinated
compounds, PFOS and PFOA. Fire-fighting foam itself has
immense social utility, with its power to mitigate
catastrophic harm to people and property. According to
Plaintiffs' Complaint, the Navy's specification for
AFFF required the use of fluorocarbon surfactants. Compl.
¶ 40. To the extent that fire-fighting foam is only
effective when it contains fluorocarbon surfactants, its
social utility is tied to the use of such chemicals. However,
Plaintiffs contend that Defendants chose to use particular
types of fluorocarbon surfactants (those that degrade into
PFOS/PFOA) that cause harm to people and the environment.
Compl. ¶ 44. Plaintiff alleges that Defendant 3M ceased
producing AFFF that contained PFOS/PFOA in 2002 due to health
and environmental concerns. Compl. ¶ 69. To the extent
that Defendants 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 PFOS/PFOA. This factor, therefore, weighs in favor of
finding a duty.
weigh the social utility of Defendants' conduct against
the third factor, the nature of the risk and foreseeability
of Plaintiffs' exposure to toxic chemicals.
Althaus, 756 A.2d at 1170. The concept of
foreseeability in this context means “the likelihood of
the occurrence of a general type of risk rather than
the likelihood of the occurrence of the precise chain of
events leading to the injury.” Charlie, 100
A.3d at 255. In Phillips, the court found that the
risk of injury from children playing with lighters without
child safety features was substantial. Phillips, 841
A.2d at 1009. The court further found that it was reasonably
foreseeable to defendant that its lighters would fall into
the hands of small children, some of whom might start fires
because of the absence of child safety features. Id.
In Charlie, the court acknowledged the substantial
harm that resulted from spontaneously combusting rags in a
dryer. Charlie, 100 A.3d at 257. However, despite
the gravity of this harm, the court doubted that the
defendants “let alone the general public” would
have reasonably anticipated spontaneous combustion under
those circumstances. Id.
Plaintiffs allege that exposure to PFOS/PFOA results in
increased risk of serious health conditions. Drawing
inferences in the light most favorable to Plaintiffs, there
is at least some risk of harm that Plaintiffs would be
exposed to the Warminster public water supply, which has been
found to be contaminated. Compl. ¶ 76. Furthermore, it
is foreseeable to a manufacturer that toxic chemicals used at
a particular facility will not necessarily remain confined to
that facility, especially when those chemicals are in the
form of a water-based foam that can leach into the