Higgins v. Huhtamaki Inc.

Decision Date23 June 2022
Docket Number1:21-cv-00369-NT
PartiesLAWRENCE HIGGINS, et al., Plaintiffs, v. HUHTAMAKI, INC., et al., Defendants.
CourtU.S. District Court — District of Maine

LAWRENCE HIGGINS, et al., Plaintiffs,
v.

HUHTAMAKI, INC., et al., Defendants.

No. 1:21-cv-00369-NT

United States District Court, D. Maine

June 23, 2022


ORDER ON DEFENDANTS' MOTIONS TO DISMISS

Nancy Torresen United States District Judge

Before me are two motions by the Defendants to dismiss the First Amended Complaint (“FAC”). For the reasons stated below, the motions are GRANTED IN PART and DENIED IN PART.

FACTUAL BACKGROUND

This case arises out of the alleged discharge, distribution, disposal, and spreading of per- and polyfluoroalkyl substances and their constituents (collectively, “PFAS”) by paper mills owned and operated by the Defendants in and around Central Maine. FAC ¶¶ 1-2, 10, 29, 34, 36, 37, 38, 41 (ECF No. 58). The Defendants used and disposed of PFAS as a part of their mill operations.[1] FAC ¶¶ 1, 10, 33, 35, 36, 37, 3940, 43-44, 69. The Plaintiffs, who own and/or occupy various pieces of real property (the “Properties”) in Fairfield, Maine, allege that the Defendants' disposal of PFAS-contaminated byproducts through the operation of their mills resulted in PFAS

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leaching into the groundwater and aquifers and ultimately contaminating the Plaintiffs' wells, land, plants, and animals, as well as the Plaintiffs' bodies. FAC ¶¶ 310, 75.

Defendant Huhtamaki, Inc., (“Huhtamaki”) and its predecessor companies have owned and operated the Huhtamaki Mill in Waterville since 1903. FAC ¶¶ 2932. Defendant Sappi North America, Inc., f/k/a S. D. Warren Company, (“Sappi”) and its predecessor companies have owned and operated the Somerset Mill in Skowhegan since at least 1982. FAC ¶¶ 34-35. Defendant Kimberly-Clark Corporation (“Kimberly-Clark”) and its predecessor company owned and operated the Winslow Paper Mill in Winslow from 1950 until it was dismantled in 1997. FAC ¶ 36. Defendants Northern S.C. Paper Corporation (“Northern S.C. Paper”) and UPM-Kymmene, Inc., (“UPM”) formed a partnership that owned and operated the Madison Mill in Starks from 1980 until it closed in 2016. FAC ¶ 37. Defendant International Paper Company (“International Paper”) established the Androscoggin Paper Mill in Jay in 1965. FAC ¶ 38. That mill was subsequently acquired by Defendant Billerud Americas Corporation[2] (“Billerud”), which owned it until 2019 when Defendant Pixelle Specialty Solutions (“Pixelle”) acquired the mill. FAC ¶¶ 39-40. International Paper and its predecessor companies also owned and operated the Bucksport Paper Mill from 1930 until 2006. FAC ¶¶ 41-44. In 2006, Billerud purchased the mill, which it owned until shuttering the mill in 2014. FAC ¶ 44.

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The FAC does not indicate where these six mills (the “Mills”) are (or were) located in relation to the Properties or the distance from the Mills to the Properties. Given the address information for the Plaintiffs, see FAC ¶¶ 3-9, and the general location of the Mills, I take judicial notice, see Fed.R.Evid. 201, of the fact that the Huhtamaki Mill and Somerset Mill are just a few miles from the Properties. I also take judicial notice of the fact that Winslow is approximately ten miles southeast of the Properties, Starks is approximately twenty miles northwest of the Properties, Jay is approximately thirty miles southwest of the Properties, and Bucksport is approximately fifty miles east of the Properties.

The Defendants used PFAS in making paper products at each of the Mills. FAC ¶ 69. The processes used to make these products create residuals or byproducts- primarily wastewater or sludge, which is sometimes converted to biosolids-that are heavily contaminated with PFAS. FAC ¶ 70. The Defendants disposed of these byproducts by discharging them into wastewater treatment facilities, discharging them as surface water, placing them in landfills, and selling or distributing them as fertilizers and soil enhancers. FAC ¶ 71.

Although the allegations in the FAC are mostly quite general, the FAC provides more specific allegations for some of the Defendants. For example, the Plaintiffs allege that, between 1984 and 1989, Sappi deposited its PFAS-contaminated waste on 305 acres of twenty-one fields in Fairfield. FAC ¶ 73.[3]

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International Paper and Billerud have also spread significant amounts of PFAS-containing biosolids on fields, FAC ¶ 73, although the location of these fields is unknown. Huhtamaki contributed a significant amount of PFAS-contaminated waste to the Kennebec Sanitary Treatment District plant, and the resulting PFAS-contaminated sludge and biosolids were spread on fields near the Properties. FAC ¶ 74.

PFAS that are deposited on the ground are all but certain to migrate through the soil to groundwater and aquifers and through runoff to nearby lands and waterways. FAC ¶ 72. Their path of contamination is virtually impossible to predict. FAC ¶ 72. This results in uneven distribution of the chemicals in the soil and in groundwater and in uneven contamination of wells. FAC ¶¶ 77, 79. Sometimes contaminated wells are in close proximity to uncontaminated properties. FAC ¶ 79. Maine has determined that it is unsafe for a well to be contaminated with PFAS in amounts greater than 20 parts per trillion. FAC ¶ 61. The Plaintiffs' wells exceed this level by at least a magnitude of six. FAC ¶ 61.

PFAS are harmful to human health in the quantities to which the Plaintiffs have been exposed. FAC ¶ 45. They are readily absorbed after oral exposure and accumulate primarily in the serum, kidney, and liver. FAC ¶ 53. They interfere with the normal functioning of the endocrine system. FAC ¶ 55. They can adversely affect

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the immune system. FAC ¶ 56. PFAS have been linked to cancer, thyroid disease, high cholesterol, obesity, ulcerative colitis, gestational hypertension, hypertension, kidney disease, diabetes, preeclampsia, reduced immunological functioning, and a diminished responsiveness to vaccines. FAC ¶ 57. These types of impairments can manifest years after exposure to PFAS. FAC ¶ 57. Studies have shown that significant PFAS exposure more than doubles the risk of contracting COVID-19 and of having a severe form of the disease. FAC ¶ 58. It also greatly increases the risk of intensive care or death. FAC ¶ 58.

The Plaintiffs used their contaminated well water for drinking, cooking, bathing, watering their lawns and gardens, and watering their animals. FAC ¶ 62. And they have suffered physiological and economic consequences as a result. They have all had their blood, tissue, and organs contaminated with these chemicals and have suffered damage to their endocrine and immune systems. FAC ¶ 62. Examples of adverse effects suffered by the Plaintiffs as a result of their PFAS exposure include obesity, diabetes, COVID-19 infections (even after vaccination and boosting), influenza (even after vaccination), hypertension, gestational hypertension, and borderline preeclampsia. FAC ¶ 63. The Plaintiffs, who are now aware that they have consumed contaminated water for years, have suffered significant mental anguish and emotional distress because of present and future health concerns for themselves and their children. FAC ¶ 66.

In addition, the Plaintiffs have suffered economic consequences from this contamination. Their homes and soil have been contaminated with PFAS, and the

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Plaintiffs will continue to be exposed to these chemicals until their homes, properties, and wells are fully remediated, which is difficult to do. FAC ¶¶ 53, 64. The Plaintiffs have also endured the closing of a daycare, the loss of produce from gardens, and issues with poultry production. FAC ¶ 65.

The FAC puts forward seven counts against all eight defendants: negligence (Count I), nuisance (Count II), statutory nuisance (Count III), negligent infliction of emotional distress (“NIED”) (Count IV), medical monitoring (Count V), trespass (Count VI), and abnormally dangerous activity/ultrahazardous activity/strict liability (Count VII).[4] In their prayer for relief, the Plaintiffs primarily seek compensatory damages, including for physical and emotional distress and for medical monitoring.

PROCEDURAL BACKGROUND

The Plaintiffs originally filed this case in state court, and Huhtamaki then removed the case to federal court. Notice of Removal (ECF No. 1); Compl. (ECF No. 1-1). The Defendants (as well as some other defendants who have now been dismissed) subsequently filed a joint motion to dismiss (ECF No. 52) and a joint motion for oral argument (ECF No. 53) (the “Original Motions”). Shortly before filing a response to the Original Motions (ECF No. 59), the Plaintiffs filed the FAC. And the Defendants filed two new motions to dismiss-one by Huhtamaki, International Paper, Kimberly-Clark, Pixelle, Sappi, and Billerud (the “First Motion Defendants”) and one by UPM and Northern Paper (the “Second Motion

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Defendants”). Because the FAC substantially changed the state of play, the Original Motions are DENIED as moot.

The motion to dismiss filed by the First Motion Defendants (“First Defs.' Mot.”) begins with a facial attack against the FAC as a whole, arguing that the Plaintiffs' allegations are too generalized and nonspecific to state a plausible claim for relief. First Defs.' Mot. 3-4 (ECF No. 68). In particular, the First Motion Defendants fault the Plaintiffs for failing to plead particular facts about how each individual defendant proximately caused their harms. First Defs.' Mot. 3-4. The Second Motion Defendants have filed a separate motion to dismiss (“Second Defs.' Mot.”) that makes a similar and even more forceful argument about this supposed lack of specific allegations, especially pertaining to causation. Second Defs.' Mot. 511 (ECF No. 70).

The First Motion Defendants go on to make a series of additional arguments that pertain specifically to the public nuisance (Count II), NIED (Count IV), medical monitoring (Count V), and strict liability (Count VII) claims. First Defs.' Mot. 4-20. The Second Motion Defendants adopt these...

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