Jones v. Lubrizol Advanced Materials, Inc.

• Citation: 559 F.Supp.3d 569
• Decision Date: 08 September 2021
• Docket Number: Case No. 1:20-cv-00511
• Parties: Kevin JONES, et al., Plaintiffs, v. LUBRIZOL ADVANCED MATERIALS, INC., et al., Defendants.
• Court: United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio

559 F.Supp.3d 569

Kevin JONES, et al., Plaintiffs,

v.LUBRIZOL ADVANCED MATERIALS, INC., et al., Defendants.

Case No. 1:20-cv-00511

United States District Court, N.D. Ohio, Eastern Division.

Signed September 8, 2021

Beau D. Hollowell, Daniel R. Karon, Law Office of Daniel R. Karon, Cleveland, OH, Brendan S. Thompson, Charles J. LaDuca, Cuneo, Gilbert & LaDuca, Washington, DC, Jacob M. Polakoff, Berger Montague, Philadelphia, PA, Robert K. Shelquist, Lockridge Grindal Nauen, Minneapolis, MN, for Plaintiffs.

Lawrence Deutsch, Berger & Montague, Philadelphia, PA, for Plaintiffs Kevin Jones, Janet Jones, Douglas Cochrane, Catherine Martin.

Jeffrey J. Lauderdale, Nada G. Faddoul, Lubrizol, Wickliffe, OH, for Defendants Lubrizol Advanced Materials, Inc., Lubrizol Corporation.

Bradley R. Kutrow, Abigail A. Golden, Robert K. Warren, McGuire Woods, Charlotte, NC, Carolyn M. Cole, Kip T. Bollin, Thompson Hine, Cleveland, OH, for Defendant Charlotte Pipe & Foundry Co.

Carolyn M. Cole, Kip T. Bollin, Thompson Hine, Cleveland, OH, for Defendant Cresline Plastic Pipe Co. Inc.

OPINION AND ORDER

J. Philip Calabrese, United States District Judge

Plaintiffs Kevin and Janet Jones, Douglas Cochrane, Donna Baker, and Catherine Martin own houses in which allegedly defective plastic pipes and fittings were installed from January 1, 1991 to the present. Plaintiffs proceed both on behalf of themselves and a putative nationwide class and four State classes of those similarly situated. They assert various claims under the laws of four different States against the manufacturers of the chlorinated polyvinyl chloride pipes, marketed under the FlowGuard Gold brand. As Defendants, Plaintiffs name (1) Lubrizol Corporation and Lubrizol Advanced Materials, Inc., which developed FlowGuard Gold, supplies chemicals for use in downstream manufacturing processes, and licenses the trade name to others; (2) Cresline Plastic Pipe Co. Inc., which extrudes and molds FlowGuard Gold pipes and fittings; and (3) Charlotte Pipe and Foundry Co., which acquired Thompson Plastics, Inc., including its FlowGuard Gold line of products. Each Defendant moves to dismiss the consolidated amended complaint. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART each motion.

STATEMENT OF FACTS

Taking the facts alleged in the consolidated amended complaint as true and construing them in Plaintiffs’ favor, as the Court must on a motion to dismiss, Plaintiffs base their claims in this putative class action on the following facts.

A. FlowGuard Gold

FlowGuard Gold is a brand of non-metallic piping product made from a type of plastic known chemically as chlorinated polyvinylchloride ("CPVC"). (ECF No. 17, ¶¶ 1, 3, PageID #181.) Lubrizol Advanced Materials, Inc. and The Lubrizol Corporation, which for now the Court will treat as a single entity, are Ohio businesses that manufacture "chlorinated polyvinyl chloride (CPVC) resins and compounds." (ECF No. 17, ¶¶ 14–15, PageID #183.) They "designed, developed and marketed FlowGuard Gold" (id. , ¶ 16) and supply the compounds to the other Defendants, who use them to make CPVC pipes and fittings under the FlowGuard Gold brand name (id. , ¶ 74, PageID #201).

Charlotte Pipe and Foundry Company, located in North Carolina, was "involved in, the development, manufacture, marketing, sales, warranting and distribution of FlowGuard Gold." (Id. , ¶ 17, PageID #183–84.) In 2004, Charlotte Pipe acquired Thompson Plastics, Inc., another manufacturer of FlowGuard Gold. (Id. ) Since the acquisition, Charlotte Pipe continues to operate Thompson Plastics’ plant using Lubrizol's resins and compounds in the manufacture of FlowGuard Gold products. (Id. ) Plaintiffs allege Charlotte Pipe has successor liability for the actions of Thompson Plastics related to FlowGuard Gold. (Id. )

Cresline Plastic Pipe Co., Inc., an Indiana company, develops, manufactures, markets, sells, warrants, or distributed FlowGuard Gold. (Id. , ¶ 18.)

B. Installation of FlowGuard Gold in Plaintiffs’ Homes

FlowGuard Gold pipes were installed in Plaintiffs’ houses. Essentially, Plaintiffs allege that these pipes failed prematurely and contrary to the representations made regarding the product's performance, resulting in damage to their properties.

B.1. The Joneses of Arizona

Plaintiffs Kevin and Janet Jones live in Arizona. (ECF No. 17, ¶ 10, PageID #183.) In 1999, they constructed a new home and installed FlowGuard Gold pipes. (ECF No. 17, ¶ 21, PageID #185.) Ten years later, in October 2019, the pipes leaked, eventually causing the ceiling of one of the bedrooms to cave in. (Id. , ¶ 22.) When they first discovered the leak, they turned off the water to their house and put a bucket under the leak. (Id. , ¶ 23.) They called a contractor to repair the leak, and the contractor told them the leaky pipe was brittle. (Id. ) Later, another leak occurred in the ceiling above the home's kitchen and front bathroom, damaging those areas of the home. (Id. , ¶ 24.) Due to the leaks and the pipes’ alleged brittleness, the Joneses replumbed their house, at a cost in excess of $11,000 apart from incidental hotel bills totaling more than $2,000. (Id. , ¶ 27, PageID #186.) The Jones's insurance only covered part of those claimed damages. (Id. , ¶ 25.)

Mrs. Jones contacted Charlotte Pipe to make a warranty claim. (Id. , ¶ 28.) She spoke with a company representative, but claims Charlotte Pipe never sent her the form required to process her claim. (Id. , ¶¶ 29–30.) The consolidated amended complaint includes photos of the Jones's allegedly defective FlowGuard Gold pipes. (Id. , ¶ 32, PageID #187–88.)

B.2. Mr. Cochrane of Massachusetts

Plaintiff Douglas Cochrane lives in Massachusetts. (ECF No. 17, ¶ 11, PageID #183.) In 2008, he built his home with FlowGuard Gold pipes and fittings designed by Lubrizol and Charlotte Pipe. (Id. , ¶ 34, PageID #188.) He claims his FlowGuard Gold pipes first leaked in June 2019. (Id. , ¶ 35.) That leak flooded his basement, damaged his ceiling tiles, trim, carpet and furniture, and caused his insurance company to drop him. (Id. , ¶¶ 35–36.) Between August 2019 and May 2020, he claims further leaks damaged his house. (Id. , ¶ 37, PageID #189.)

He contacted Charlotte Pipe and initiated a warranty claim. (Id. , ¶ 38.) He sent Charlotte Pipe photos and a sample of the failed FlowGuard Gold fitting. (Id. ) Two months later, Charlotte Pipe sent him an email and report concluding that the pipe and fitting was not defectively manufactured and failed "due to environmental stress cracking caused by exposure on the exterior to incompatible plasticizers and nonionic surfactants[.]" (Id. , ¶ 39.) Accordingly, Charlotte Pipe rejected his claim. (Id. , ¶ 40.)

His house continues to experience leaks, and Mr. Cochrane believes his pipes will have to be replaced. (Id. , ¶ 41–42, PageID #189–90.) He claims he would not have purchased a house with FlowGuard Gold pipes and fittings had he known the pipes would fail. (Id. , ¶ 45, PageID #190.) The consolidated amended complaint includes photos of the allegedly defective FlowGuard Gold pipes and fittings from his house. (Id. , ¶ 46, PageID #191.)

On May 4, 2020, Mr. Cochrane's counsel sent a letter to Lubrizol and Charlotte Pipe, notifying them of alleged violations of Massachusetts laws and demanded relief for himself and a putative Massachusetts class against Charlotte Pipe. (Id. , ¶ 43, PageID #190.) According to the consolidated amended complaint, a month later, Lubrizol and Charlotte Pipe failed to offer any "fair and reasonable" relief. (Id. , ¶ 44.)

B.3. Ms. Baker of Washington

Plaintiff Donna Baker lives in Washington. (ECF No. 17, ¶ 12, PageID #183.) During construction of her home in 2004, FlowGuard Gold pipes and fittings designed and manufactured by Lubrizol, Charlotte Pipe, and Thompson Plastics were installed. (Id. , ¶ 48, PageID #192.) Pipes in her living room wall leaked in November 2018 and damaged the wall, requiring it to be cut open to replace the failed piping. (Id. , ¶ 49.) In July 2020, Ms. Baker discovered mold in her spare bedroom. (Id. , ¶ 50, PageID #192–93.) A mold remediation company discovered a leak in the bedroom wall and elsewhere, so Ms. Baker had the FlowGuard Gold pipes in the bedroom wall replaced. (Id. , PageID #193.) Ms. Baker's insurance company did not cover the damage leaks from the FlowGuard Gold pipes allegedly caused. (Id. , ¶ 51.)

After the bedroom leak, Ms. Baker initiated a warranty claim with Charlotte Pipe, complete with photos of the failed product. (Id. , ¶ 52.) Charlotte Pipe denied the claim, explaining that Thompson Plastics manufactured Ms. Baker's piping, not Charlotte Plastics. (Id. , ¶ 53.) The consolidated amended complaint includes photos of both leaks. (Id. , ¶¶ 56–57, PageID #194–97.)

B.4. Ms. Martin of Michigan

Plaintiff Catherine Martin lives in Michigan. (ECF No. 17, ¶ 13, PageID #183.) In 1997, construction of her house used FlowGuard Gold pipes Lubrizol and Cresline Plastic manufactured. (Id. , ¶ 59, PageID #197.) During replacement of a bathroom vanity in March 2019, a FlowGuard Gold pipe broke and leaked, causing the kitchen ceiling beneath to sag, which required replacement and repainting. (Id. , ¶ 60.) About a year later, in February 2020, a FlowGuard Gold pipe broke behind Ms. Martin's laundry room wall after a flooring installer turned off the water to her washing machine. (Id. , ¶ 61.) As a result, the laundry room, basement, and ductwork flooded and required the removal and replacement of drywall. (Id. ) The next day, a FlowGuard Gold pipe broke and flooded Ms. Martin's basement. (Id. , ¶ 62, PageID #198.) During the repairs, a plumber told Ms. Martin the FlowGuard Gold pipe was brittle and difficult to cut. (Id. , ¶ 63.)

Ms. Martin submitted a warranty claim to Cresline Plastic on March 4, 2020. She included details of the problems FlowGuard Gold had caused and included photographs and a piece of the FlowGuard Gold pipe that had leaked or was adjacent to the leaks. (Id. , ...