O'Donnell v. Scranton Sch. Dist.

• Decision Date: 15 July 2022
• Docket Number: Civil Action 3:20-CV-225
• Parties: ALBERT P. O'DONNELL, REBECCA M. O'BRIEN, and GEORGE GEVARAS, on behalf of themselves and all others similarly situated, Plaintiffs, v. SCRANTON SCHOOL DISTRICT, et al. Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

ALBERT P. O'DONNELL, REBECCA M. O'BRIEN, and GEORGE GEVARAS, on behalf of themselves and all others similarly situated, Plaintiffs, v. SCRANTON SCHOOL DISTRICT, et al. Defendants.

Civil Action No. 3:20-CV-225

United States District Court, M.D. Pennsylvania

July 15, 2022

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge.

I. INTRODUCTION

Defendants' Motion to Dismiss the Complaint (Doc. 17) is pending before the Court. With the Motion, Defendants ask the Court to dismiss Plaintiffs' Class Action Complaint (Doc. 1) with prejudice. (Doc. 17 at 2.)

The three named Plaintiffs in the Class Action Complaint (“Complaint”) are Albert O'Donnell, principal of a Scranton School District elementary school, Rebecca O'Brien, a teacher in a Scranton School District middle school, and George Gevaras, a former maintenance worker at numerous Scranton School District schools. (Doc. 1 ¶¶ 3-5.) In addition to the Scranton School District (“District”), Defendants are current and former School Board Members in the District. (Id. ¶¶ 8-22.)

This 42 U.S.C. §§ 1983 and 1988 action is based on Plaintiffs' allegations that the District has numerous confirmed instances of asbestos contamination and lead in the drinking water in its schools, and the District was made aware of these problems. (Doc.1.) Plaintiffs maintain in their supporting brief that Defendants' “deliberate indifference to Plaintiffs' safety, combined with their false affirmation that the Schools were safe, created a dangerous condition in the Schools resulting in Plaintiffs' and putative class members' exposure to asbestos and lead.'' (Id.) Plaintiffs' Complaint, filed on February 7,2020, contains two counts Count I asserts a State Created Danger claim pursuant to 42 U.S.C. §§ 1983 and 1988; Count II asserts a Medical Monitoring claim pursuant to 42 U.S.C. §§ 1983 and 1988. (Doc. 1 at 45, 47.)

For the reasons that follow, the Court will grant the Defendants' Motion to Dismiss the Complaint (Doc. 17). However, the Court will dismiss the Complaint (Doc. 1) without prejudice and allow Plaintiff to file an amended complaint.

II. BACKGROUND^[1]

Plaintiffs are current or former District employees. (Doc. 1 ¶¶ 3-5.) Defendants are the District and current or former School Board Members. (Id. ¶¶ 6,8-22.) Individual Defendants allegedly had access to and were able to review environmental engineering reports about the presence of asbestos and lead in the District Schools (“Schools”). (Id. ¶¶ 8-22.) At all relevant times, the District owned, possessed, and controlled the Schools. (Id. 27.)

At the end of January 2020, District officials first revealed widespread asbestos and lead issues affecting most of the Schools in the District. (Id. ¶ 28.) During the week of January 27,2020, the District closed four Schools (Northeast Intermediate, Prescott Elementary, Willard Elementary, and Robert Morris Elementary) due to the presence of airborne asbestos and lead in the drinking water. (Id. ¶ 29.) At the time the Complaint was filed, one of the Schools remained closed, and the others re-opened without a complete explanation as to what was done to remediate them. (Id. ¶ 30.)

Asbestos

Asbestos is considered an excellent electrical insulator due to its high resistance to fire, heat, electrical, and chemical damage, but it is a highly toxic airborne fibrous substance that has been identified as a major carcinogen to those exposed to it. (Id. ¶¶ 31-32.) There are two general ways that asbestos becomes airborne:

34. . . . Products manufactured with asbestos can age, deteriorate or biodegrade over time. As asbestos crumbles with age, it can collapse and leave light dust of asbestos fibers surrounding it causing a natural disturbance. These fibers can be lifted on any slight draft or ventilation action and inhaled. Other natural forces like air friction can fray asbestos in pipe insulation, or direct contact with pests, like mice or rats, can tear into the material and expose the fibers.

35. Manufacture, transport, installation and - more recently - the destruction of materials containing asbestos has become a primary cause for asbestos to be injected into the air. Demolition and renovation pose the most critical threat as workers unknowingly cut into workspaces or materials containing asbestos without the proper hazard gear. Natural winds and ventilation systems used in the buildings while work is ongoing create exposure risk for disturbed and airborne asbestos fibers, causing them to be inhaled by a wider group than those who directly contacted the material.

36. Inhalation of asbestos particles occurs when asbestos-containing materials decompose or are physically disturbed.

(Doc. 1 ¶¶ 34-36.)

In 1970, Congress passed the Clean Air Act, which allowed the Environmental Protection Agency to regulate asbestos as a hazardous air pollutant. (Id. ¶ 33.) The EPA has designated asbestos as a Group A carcinogen. (Id.) The Mayo Clinic has indicated that the “effects of long-term exposure to asbestos typically don't show until 10 to 40 years after initial exposure [and] [s]ymptoms can vary in severity.” (Id. ¶ 41 (citation omitted).)

Federal law and Environmental Protection Agency regulations require the District to inspect its Schools for asbestos-containing building material, prepare management plans, and take action to prevent or reduce asbestos hazards. (Id. ¶¶ 43-44.) As early as July 1988, the District and its officials conducted asbestos inspections throughout the District pursuant to the Asbestos Hazard Emergency Response Act (“AHERA"), which, at that time, revealed widespread and pervasive asbestos problems in various Schools necessitating remediation. (Id. ¶ 44.) Between the 1988 and 2019 inspections, Guzek Associates (“Guzek”), the District's environmental engineers, identified asbestos problems in various Schools as part of a 2016 inspection, including, but not limited to, the need to remove bags of asbestos leftover from an abatement project that sat in the basement of West Scranton High school. (Id. ¶ 49.) The 2016 Guzek report contained various recommendations, including a remediation plan. (Id. ¶ 50.) Later studies reported the same results and Guzek “suspected that school officials were not fixing the problem.” (Id. ¶ 51.)

Following 2019 testing, the District revealed the existence of asbestos in all District Schools except the four newest. (Id. ¶ 46.) The 2019 test results showed there were more than 950 areas in District Schools with asbestos and 202 areas that needed urgent attention due to unsafe and hazardous levels. (Id. ¶ 47.) The 2019 reports detailed the problems in each School and the Administrative building. (Id. ¶¶ 54-97.)

Lead

Lead can enter drinking water when plumbing materials that contain lead corrode, especially where the water has high acidity or low mineral content that corrodes pipes and fixtures. (Id. ¶ 98.)

The most common sources of lead in drinking water are lead pipes, faucets, and fixtures. Lead pipes are more likely to be found in older cities and buildings built before 1986. Among properties without lead service lines, the most common problem is with brass or chrome-plated brass faucets and plumbing with lead solder.

(Id.).

The EPA has set the maximum contaminant level goal for lead in drinking water at zero because lead is a toxic metal that can be harmful to human health even at low exposure levels. (Id. ¶ 99.) Lead affects different groups in different ways:

100. Young children, infants, and fetuses are particularly vulnerable to lead because the physical and behavioral effects of lead occur at lower exposure levels in children than in adults. A dose of lead that would have little effect on an adult can have a significant effect on a child.

101. In children, low levels of exposure have been linked to damage to the central and peripheral nervous system, learning disabilities, shorter stature, impaired hearing, and impaired formation and function of blood cells.

102. Lead can accumulate in human bodies over time, where it is stored in bones along with calcium. During pregnancy, lead is released from bones as maternal calcium and is used to help form the bones of the fetus. This is particularly true if a woman does not have enough dietary calcium. Lead can also cross the placental barrier exposing the fetus to lead. This can result in serious effects to the mother and her developing fetus, including reduced growth of the fetus and premature birth. Lead can also be transmitted to infants through breast milk.

103. For adults, generally, lead exposure can cause cardiovascular effects, increased blood pressure and incidence of hypertension; decreased kidney function; and reproductive problems (in both men and women).

(Doc. 1 ¶¶ 100-103.)

The District first tested its water in 2016, and in June of that year the District announced it had shut off eight water fountains and eleven sinks after test results revealed elevated lead levels in the water. (Id. ¶ 106.) District officials planned to replace the brass or bronze fittings in the affected locations in summer 2016, but Plaintiffs believe they did not do so. (Id.)

In 2019, Guzek performed evaluations of lead in drinking water at District Schools.^[2](Id. ¶ 104.) The identified actionable level is 0.015 mg/l. (Id. ¶ 112.) The 2019 lead testing detailed the problem at seven District Schools and Memorial Stadium. (Id. ¶¶ 109-116.) In January 2019, Guzek urged the District to shut off more than two dozen faucets and sinks in Schools throughout the District. (Id. ¶ 107.) However many of those fixtures remained in operation until January 2020 when tests again revealed unsafe lead levels. (Id.) In January 2020, the District for the first time turned off and/or placed warnings at thirty-eight...