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Menkes v. 3M Co.

United States District Court, E.D. Pennsylvania

May 21, 2018



          TUCKER, J.

         The 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 property.

         Before 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.

         Upon careful consideration of the parties' submissions, and for the reasons set forth below, Defendants' Motions are GRANTED IN PART AND DENIED IN PART.


         Plaintiffs 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.

         Plaintiffs allege the following:

         Aqueous 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. ¶¶ 15-18, 21.

         Plaintiffs 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.

         Plaintiffs 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. ¶ 50.

         For 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.

         In 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. ¶ 81.

         Plaintiff 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.

         Plaintiffs 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.


         To 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.

         Federal 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.


         Defendants 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.

         A. Plaintiffs' Negligence Claim (Count One)

         To state a claim for negligence, Plaintiffs must plead: “[1] the presence of a legal duty or obligation; [2] a breach of that duty; [3] a causal link between that breach and the injury alleged; and [4] 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 injury alleged.

         1. Plaintiffs' Allegations Sufficiently Support The Existence Of A Duty

         Defendant 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.

         Defendant 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.

         Plaintiffs 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.

         Whether 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 true.

         The 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.

         The 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 255.

         Here, 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.

         We must 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.

         Here, 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 ...

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