Giordano v. Solvay Specialty Polymers USA, LLC

• Decision Date: 26 February 2021
• Docket Number: 1:19-cv-21573-NLH-KMW
• Citation: 522 F.Supp.3d 26
• Parties: John GIORDANO and Jeanette Giordano, et al., Plaintiffs, v. SOLVAY SPECIALTY POLYMERS USA, LLC, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

522 F.Supp.3d 26

John GIORDANO and Jeanette Giordano, et al., Plaintiffs,

v.SOLVAY SPECIALTY POLYMERS USA, LLC, et al., Defendants.

1:19-cv-21573-NLH-KMW

United States District Court, D. New Jersey.

Signed February 26, 2021

DAVID M. CEDAR, SHAUNA LAUREN FRIEDMAN, ALAN HERSCHEL SKLARSKY, WILLIAMS CEDAR, LLC, 8 KINGS HIGHWAY WEST, SUITE B, HADDONFIELD, NJ 08033, On behalf of Plaintiffs.

KEGAN ANDREW BROWN, LATHAM & WATKINS LLP, 885 3RD AVENUE, NEW YORK, NY 10022, On behalf of Defendant Solvay Specialty Polymers USA, LLC, successor by merger to Solvay Solexis, Inc.

JOHN D. NORTH, IRENE HSIEH, JEMI GOULIAN LUCEY, MARJAN MOUSSAVIAN, GREENBAUM, ROWE, SMITH & DAVIS, LLP, 99 WOOD AVENUE SOUTH, ISELIN, NJ 08830, KHRISTOPH ANDREAS BECKER, STEPTOE & JOHNSON LLP, 1114 AVENUE OF THE AMERICAS, 35TH FLOOR, NEW YORK, NY 10036, ROBERT L. SHUFTAN (pro hac vice), STEPTOE & JOHNSON LLP, 227 WEST MONROE STREET, SUITE 4700, CHICAGO, IL 60606, JOO CHA WEBB (pro hac vice), STEPTOE & JOHNSON LLP, 633 WEST FIFTH STREET, SUITE 1900, LOS ANGELES, CA 90071, On behalf of Defendant Arkema, Inc.

LANNY S. KURZWEIL, NATALIE S. WATSON, RYAN A. RICHMAN, MCCARTER & ENGLISH, LLP, FOUR GATEWAY CENTER, 100 MULBERRY STREET, PO BOX 652, NEWARK, NJ 07101-0652, On behalf of Defendants E. I. du Pont de Nemours & Company, The Chemours Company and The Chemours Company FC, LLC.

DONALD J. CAMERSON, II, JAMES W. CROWDER, IV, BRESSLER, AMERY & ROSS, P.C., 325 COLUMBIA TURNPIKE, FLORHAM PARK, NJ 07932, ANDREW J. CALICA (pro hac vice), JORDAN SAGALOWSKY (pro hac vice), MAYER BROWN LLP, 1221 AVENUE OF THE AMERICAS, NEW YORK, NY 10020, On behalf of Defendant 3M Company..

HILLMAN, District Judge

This matter concerns claims by Plaintiffs¹ regarding the contamination of their private water wells with poly- and perfluoroalkyl substances ("PFAS"). Presently before the Court are the motions of Defendants, which either discharged or manufactured the PFAS, to dismiss Plaintiffs’ claims. For the reasons expressed below, Defendants’ motions will be granted on one issue, but denied in all other respects.

BACKGROUND

Plaintiffs’ complaint² describes the nature of their case and provides the following background to support their claims:

This is a civil action for compensatory and punitive damages, including medical monitoring and costs incurred and to be incurred by Plaintiffs arising from the intentional, knowing, reckless, and negligent acts and omissions of Defendants, which resulted in the contamination of Plaintiffs’ private water supply. The contamination was caused by the Defendants’ intentional manufacturing, use, discharge, and/or disposal of poly- and perfluoroalkyl substances ("PFAS"), including perfluorononanoic acid ("PFNA"), perfluorooctanoic acid ("PFOA"), and perfluorooctanesulfonic acid ("PFOS"), and their replacement compounds, including but not limited to "GenX."

PFAS are man-made chemicals manufactured and used in the United States since the 1940s. PFAS have fire-resistant properties and act as oil, grease, and water repellants; have been used to make numerous household products like Stainmaster®, Scotchgard®, Teflon®, Gore-Tex® and Tyvek®; and have long been used in aqueous film-forming foam used to fight fires. PFAS compounds are extremely resistant to degradation and thus persist indefinitely in the environment.

PFAS compounds bioaccumulate resulting in the buildup of these toxins in living tissue, and people who consume these substances through drinking water and other means accumulate increasing concentrations of PFAS in their blood. Some PFAS are classified as carcinogenic, and Plaintiffs’ complaint relates that studies show that exposure to PFAS may cause testicular cancer

, kidney cancer, liver cancer, autoimmune disorders, endocrine disorders, developmental defects to fetuses during pregnancy, developmental defects to breastfed babies, reduced vaccine response, increased cholesterol, and increased liver enzymes.

Replacement chemicals including but not limited to "GenX" have been substituted by Defendants in place of their PFAS chemicals. These replacement chemicals are being touted as short-chain and having shorter half-lives. However, these replacement chemicals may have similar toxicity, and these replacement chemicals do not break down in the environment and have also been detected in drinking water, groundwater, and surface waters.

The New Jersey Department of Environmental Protection has issued groundwater quality criteria for PFAS, and NJDEP issued a Statewide PFAS Directive, Information Request and Notice to Insurers against Defendants "to notify them that the Department believes them to be responsible for the significant contamination of New Jersey's natural resources, including the air and waters of the State, with poly- and perfluoroalkyl substances" which encompass the air and water utilized by Plaintiffs.

Defendants are Solvay Specialty Polymers, USA, LLC, Solvay Solexis, Inc. ("Solvay"); Arkema, Inc. ("Arkema"); E.I. du Pont de Nemours & Company, The Chemours Company, The Chemours Company FC, LLC, ("EID/CC"); and The 3M Company ("3M").

Solvay has been the owner and operator of a manufacturing facility located at 10 Leonard Lane, West Deptford, NJ 08085 from 1990 to present. Arkema owned and operated the West Deptford facility prior to 1990, and Arkema manufactured polyvinylidene fluoride ("PVDF") and other high-performance materials at the West Deptford facility prior to 1990. From approximately 1990 to 2012, Solvay manufactured PVDF at this facility, which is a specialty plastic utilized in conjunction with lithium batteries, medical and defense uses, semiconductors, or other instances when a higher level of purity is required. Solvay also used sodium perfluorooctanoate (NaPFO) as a surfactant at the West Deptford Facility, which was supplied to them by 3M. NaPFO degrades into PFOA.

DuPont owned and operated Chambers Works, 67 Canal Road and Route 130, located in Pennsville and Carneys Point Townships, New Jersey from 1891 to 2015. DuPont produced, utilized, and discharged into the environment approximately 1,200 chemicals, pollutants, and other hazardous substances from the Chambers Works facility. PFOA was used at Chambers Works beginning in the late 1950s to, among other things, manufacture fluoroelastomers, perfluoroelastomers and specialty fluoroelastomers used in a variety of consumer and other products for their chemical non-stick and heat-resistant properties. Telomers were also used and manufactured at Chambers Works, and PFOA is a by-product of the telomer manufacturing process. In 2015, DuPont transferred its Chambers Works facility to Chemours, but continued to operate at the location pursuant to an industrial lease (whereby DuPont was the tenant and Chemours FC was the landlord). 3M supplied DuPont with PFOA.

Plaintiffs claim that Defendants knew or should have known of the health and environmental impacts of PFAS for decades but continued to use them in products and release them into the environment. NJDEP sampled 992 private wells as of June 2018 for PFAS, and out of those 400 sampled wells, 83 wells (21%) required the installation of a point of entry treatment ("POET") system for PFNA or PFOA. All Plaintiffs in this action are part of the 21% of private wells requiring installation of a POET system due to detection of high concentrations of PFAS in their private water wells.

Plaintiffs claim that as a result of the high concentrations of PFAS in their water supply due to Defendants’ negligent, careless, wrongful, reckless, and intentional failure to take appropriate steps to prevent and reduce the discharge of PFAS into Plaintiffs’ drinking water, they are likely to have accumulated high levels of PFAS in their blood as a result of their long periods of exposure to high concentration of PFAS, and they are at risk for serious physical injuries and diseases related to their consumption, ingestion, and exposure to elevated levels of PFAS. Plaintiffs’ increased risk of serious physical injuries and diseases makes it reasonably necessary for Plaintiffs to undergo periodic diagnostic medical examinations, including blood testing, different from what would be prescribed in the absence of such exposure, for which Plaintiffs claim Defendants should be liable.

Plaintiffs further claim that the contamination of Plaintiffs’ private wells has also severely disrupted their lives. Their properties have significantly diminished in value, and they have and will continue to incur substantial costs for bottled water and maintenance of the POET system to treat their contaminated private wells in order to reduce their exposure to the contaminants in their water supply. Plaintiffs claim they have and will be subjected to annoyance, inconvenience, and distress in having to make repeated trips to pick up bottled water and use bottled water instead of tap water for such ordinary tasks as cooking, brewing coffee and tea, brushing their teeth, watering their vegetable gardens, and feeding pets.

Plaintiffs have asserted nine counts against Defendants: Count I - Negligence against all Defendants, Count II - Gross Negligence against all Defendants, Count III - Private Nuisance against Solvay, Arkema, DuPont and Chemours, Count IV - Past and Continuing Nuisance against Solvay, Arkema, DuPont and Chemours, Count V - New Jersey Spill Compensation and Control Act ("Spill Act"), N.J.S.A. 58:10-23.11 et seq., against all Defendants, Count VI - Strict Liability (Abnormally Dangerous Activities) against Solvay, Arkema, DuPont and Chemours, Count VII - Strict Liability (Failure to Warn) against 3M, Count VIII - Strict Liability (Defective Design) against 3M, and Count IX - Punitive Damages against all Defendants.

All Defendants have moved to dismiss Plaintiffs’ complaint, arguing various pleading deficiencies. Plaintiffs have opposed Defendants’ motions.

DISCUSSION

A. Subject matter jurisdiction

The averred basis for this Court's subject matter jurisdiction is 28 U.S.C. §...