Addison Cent. Sch. Dist. v. Monsanto Co.
| Docket Number | 2:23-cv-00164 |
| Decision Date | 30 September 2024 |
| Parties | ADDISON CENTRAL SCHOOL DISTRICT, et al., Plaintiffs, v. MONSANTO CO.; SOLUTIA, INC.; and PHARMACIA LLC, Defendants. |
| Court | U.S. District Court — District of Vermont |
The pending case arises out of the manufacture and sale of products containing polychlorinated biphenyls (“PCBs”) by Defendants Monsanto Co., Pharmacia LLC, and Solutia, Inc. (collectively “Defendants”), which Plaintiffs, a group of ninety-two school districts and one independent school in Vermont, used in the construction of school buildings prior to 1980. Plaintiffs seek to recover past, present, and future costs, losses, and damages associated with the presence of PCBs in their properties. They assert claims of public nuisance (Count I), private nuisance (Count II), strict liability for defective design (Count III), strict liability for failure to warn (Count IV), and trespass (Count V).[1]
On August 23, 2023, Defendants moved to dismiss seventy-nine Plaintiffs from the Complaint for lack of standing.[2] At oral argument, Defendants revised this allegation and now assert that seventy-six plaintiffs lack standing. Defendants additionally seek the dismissal of Plaintiffs' private nuisance, public nuisance, and trespass claims pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 47.) On October 6, 2023 Plaintiffs opposed the motion to dismiss, (Doc. 53), and Defendants replied on November 3, 2023. (Doc. 58.) On February 27, 2024, the court held a hearing on Defendants' motions, at which time the court also addressed the State of Vermont's motion to file an amicus brief and potential intervention. (Doc. 57.) The State of Vermont recently moved for reconsideration of the court's decision not to stay this case. (Doc. 117.) That motion is not ripe for adjudication.
Plaintiffs are represented by Gregory J. Pals, Esq.; J. Grant LaBar, Esq.; Pietro J. Lynn, Esq.; R. Preston Sifton, Jr., Esq.; T. Roe Frazer, II, Esq.; Thomas Roe Frazer, III, Esq.; and William Blair, Esq. Defendants are represented by Alexandra L. Nelson, Esq.; Devin T. McKnight, Esq.; Douglas J. Moore, Esq.; Emyr T. Remy, Esq.; Hanna C. Waite, Esq.; Ian P. Carleton, Esq.; Quentin F. Urquhart, Jr., Esq.; and Stephen I. Hansen, Esq.
Defendants are the successors in liability of Monsanto Company (“Old Monsanto”). From 1929 to 1977, Old Monsanto manufactured, marketed, sold, and distributed PCBs, which are synthetic organic chemical compounds with no known natural source. Old Monsanto's PCBs were used in construction materials and plasticizer applications such as caulking, glazing, sealants, and flooring adhesives. Plaintiffs assert that Old Monsanto expressly manufactured and promoted its PCB products for use in construction and thus knew its products would be used in the construction of schools and other buildings frequented by children and adolescents.
Old Monsanto allegedly knew, as early as 1937, that PCBs were toxic to humans and would eventually contaminate nearby air, surfaces, and materials. Notwithstanding this knowledge, Old Monsanto allegedly made representations that PCBs would not significantly off-gas, migrate, or leach when promoting its PCB plasticizer products for use in construction materials, even though there were safer alternatives for the same or similar uses. Plaintiffs assert that Old Monsanto purposefully avoided undertaking additional studies in the 1950s and 1960s because it knew the studies would likely demonstrate the dangers associated with PCBs and the likelihood PCBs could contaminate indoor air. They contend that Old Monsanto continued to deceive consumers and end-users about the dangers associated with PCBs after certain of Plaintiffs' facilities and buildings were constructed.
In 1971, Old Monsanto withdrew its PCB formulations intended for use in plasticizers and similar applications but allegedly did not inform end-users of this decision or advise them to take steps to mitigate damage caused by PCBs. In 1980, Old Monsanto stopped manufacturing PCBs but allegedly continued to deny or conceal the extent of their potential danger to humans.
Plaintiffs are Vermont municipal corporations that own and operate school buildings and facilities allegedly contaminated with “dangerously elevated concentrations” of PCBs due to the use of construction materials made with Old Monsanto's products. (Doc. 1 at 12, ¶ 2.) They contend PCBs have been detected in construction materials, soil, and indoor air on their campuses. “As a result of exceedances of the Vermont [school action level] applicable to high schools, and to protect the health of students and employees, [Plaintiffs] need to monitor the levels of PCBs in school buildings” and review options for remediating and replacing contaminated buildings and facilities. Id. at 14, ¶ 12. Such remediation and replacement efforts could lead to shutting down affected school buildings. Both temporary and permanent arrangements will allegedly be difficult and costly.
Plaintiffs assert that, in the absence of elevated PCB concentrations, existing facilities and buildings would have been safely usable. They contend that, had Old Monsanto adequately warned them prior to construction, they would not have used construction materials containing Old Monsanto's PCBs in their buildings. In addition, had Old Monsanto adequately warned them after construction of their buildings, they could have removed contaminated materials sooner and avoided the need to replace certain structures.
Plaintiffs assert PCBs are “highly toxic” to humans and “[e]xposure to even small amounts of PCBs is known to increase the risk of harm to neurological, cognitive, endocrinal, hepatic, and other biological systems.” Id. at 13, ¶ 6. When exposed to PCBs, children and adolescents are particularly susceptible to adverse neurodevelopmental impacts. PCBs, when used ordinarily and as intended, contaminate air, water, and porous materials over time by leaching, off-gassing, and migrating from their original applications. Construction materials containing PCBs allegedly inevitably contaminate indoor air over time and create a “progressively more hazardous” environment. Id. at 13, ¶ 4. PCBs also allegedly migrate or leach from plasticizers into neighboring porous surfaces and building materials over time.
Once PCBs leach, off-gas, or migrate from their original applications, they allegedly remain indefinitely absent remediation and removal. Because of the health risks associated with PCBs and the inevitable contamination associated with using construction products containing PCBs, Plaintiffs allege PCBs are “highly inappropriate and unreasonably dangerous for use in school building construction[.]” Id. at 13, ¶ 8.
In 2021, the Vermont General Assembly passed Act 74, through which it appropriated five million dollars for PCB indoor air testing in Vermont schools.[3] See 2021 Vt. Acts & Resolves 74, § E.709.1(a) (appropriating $4.5 million); id. § B.1106(3) (appropriating $500,000) (“Act 74”). The testing requirement applies to all public schools and recognized independent schools built or renovated before 1980. Id. § E.709.1(a). The current deadline for schools to complete the required testing is July 1, 2027. 2023 Vt. Acts & Resolves 78, § E.709.1(a) (“Act 78”).
The Vermont Department of Health (the “VDH”) has promulgated school action levels (“SALs”) to indicate when schools need to identify and abate potential sources of PCBs inside their buildings. The VDH set SALs based on both the health effects associated with PCBs, as evidenced by state and federal research and guidelines, and the challenges of removing widespread PCBs. Plaintiffs assert the VDH, however, “has also emphasized that even concentrations below the SAL will cause an increased risk of cancer,” and “PCB levels in the indoor air of schools should be kept as low as possible.” (Doc. 1 at 14, ¶ 11.) For grades seven and higher, the SAL is 100 ng/m3.
Defendants' motion to dismiss for lack of standing is treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (internal quotation marks omitted), aff'd, 568 U.S. 85, 133 S.Ct. 721 (2013).
“‘The party invoking federal jurisdiction bears the burden of establishing' that jurisdiction exists.” Sharkey v. Quarantillo, 541 F.3d 75, 82-83 (2d Cir. 2008) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), “the district court must take all uncontroverted facts in the complaint... as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Fountain v. Karim, 838 F.3d 129, 134 (2d Cir. 2016) (citation and internal quotation marks omitted). When considering a Rule 12(b)(1) motion, “a district court. . . may refer to evidence outside the pleadings.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
Defendants assert numerous plaintiffs lack standing because they have not suffered an injury-in-fact. They cite website data published by the Vermont Department of Environmental Conservation (the “DEC”), the state agency responsible for coordinating the school testing, which...
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