McGaffin v. Cementos Argos S.A.

• Decision Date: 13 January 2017
• Docket Number: No. 4:16-CV-104,4:16-CV-104
• Parties: JIM and BECKY MCGAFFIN, RACHALE and NATHAN LaVOIE, and DANIEL and STEFANIE NUNN, Plaintiffs, v. CEMENTOS ARGOS S.A.; ARGOS USA CORP.; ARGOS CEMENT, LLC; and ARGOS READY MIX LLC, Defendants.
• Court: U.S. District Court — Southern District of Georgia

JIM and BECKY MCGAFFIN, RACHALE and NATHAN LaVOIE,and DANIEL and STEFANIE NUNN, Plaintiffs, v. CEMENTOS ARGOS S.A.; ARGOS USA CORP.; ARGOS CEMENT, LLC;and ARGOS READY MIX LLC, Defendants.

No. 4:16-CV-104

United States District Court for the Southern District of Georgia Savannah Division

January 13, 2017

ORDER

Before the Court in this product liability case is Defendants Cementos Argos S.A.; Argos USA Corp.; Argos Cement, LLC; and Argos Ready Mix LLC's (collectively, "Argos") Motion to Dismiss Plaintiffs' Amended Class Action Complaint, dkt. no. 28. The Motion has been fully briefed, dkt. nos. 37, 41, and is now ripe for decision.

Plaintiffs Jim and Becky McGaffin, Rachale and Nathan LaVoie, and Daniel and Stefanie Nunn allege that Argos concrete is deficient, causing tremendous amounts of dust that fills their homes. See generally Dkt. No. 23. Although Plaintiffs cannot sue Argos for damage to the concrete itself because of the economic loss rule, they have adequately alleged that the dust has damaged other property and requires cleaning. Thus, for the reasons stated below, Argos's motion will be GRANTED in part and DENIED in part.

FACTUAL BACKGROUND

Under Federal Rule of Civil Procedure 12(b)(6), the Court assumes the truth of the facts alleged in the complaint. Argos manufactures concrete and supplied at least 250 homes during the time period relevant to this case. Dkt. No. 23 at 2. Argos holds itself out to be "an expert in the field of concrete design and manufacture." Id. at 9.

According to the complaint, Argos concrete is defective because of "insufficient amounts of Portland cement and/or too much fly ash¹ and/or too much poor quality fly ash." Id. at 11. This means that Argos concrete used in Plaintiffs' homes "did not set, harden or otherwise perform properly . . . with the result that it continually . . . releases a fine, white-colored silicate dust." Id. at 11-12. This dust "has damaged Plaintiffs' dwellings and real property as well as their personal property." Id. at 12. "HVAC systems (includingcomponents and filters that require frequent changing . . .), electronic devices (including computer equipment, televisions, stereos), furniture, carpet, rugs, clothing - literally everything in the dwellings - is constantly coated, re-coated and damaged by the fine, white silicate dust . . . ." Id. at 15.

The dust also poses health risks in the form of "increase[d] . . . risk of silicosis, lung cancer, other nonmalignant respiratory disease, as well as renal and autoimmune problems." Id.

Plaintiffs describe their injuries as follows:

• The McGaffin Plaintiffs' "concrete on the driveway, the back patio, and the garage has 'pitted' and disintegrated, manifesting a fine silicate dust." Id. at 12-13. "Argos . . . has removed and replaced the concrete on back patio and put a sealant on the concrete on the garage floor in an unsuccessful attempt to stop the dusting. The McGaffins' driveway also develops small holes." Id. at 13.

• The LaVoie Plaintiffs "began having problems with the concrete in their dwelling and on their driveway. A large chunk of concrete was missing in the garage. The driveway had numerous cracks. A fine silicate dust from the concrete in the slab under the floors of the dwelling infiltrates and permeates the dwelling." Id.

• The Nunn Plaintiffs "saw a large amount of white dust being tracked inside the dwelling from the front walkway area when they were moving into their home . . . Argos concrete dust appears when a foot is scraped back and forth over the concrete. . . . Argos removed and replaced the driveway, front walkway, and sidewalk in front of the Nunns' dwelling. . . . White dust is still continually produced from the slab under the carpet in two bedrooms of the Nunn dwelling, as well as from the slab under the rest of the flooring . . . ." Id. at 14.

Argos has not remediated "concrete in the slabs under the floors of Plaintiffs' houses." Id. at 14-15.

Plaintiffs sued Argos in this Court on May 6, 2016. See generally Dkt. No. 1. They amended their complaint on July 21, 2016. Dkt. No. 23. They raise four claims: negligent design and manufacture, negligent failure to warn, negligent remediation, and concealment/suppression. Id. at 19-32. They also seek to bring this case as a class action. Id. at 32. Argos moved to dismiss on August 18, 2016. Dkt. No. 28. The parties fully briefed the Motion, dkt. nos. 37, 41, and it is ripe for decision.

LEGAL STANDARD

"Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requiresthe . . . court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A complaint must be "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Its "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . ." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Iqbal, 556 U.S. at 678. It has to "contain inferential allegations from which [the court] can identify each of the material elements necessary to sustain a recovery under some viable legal theory." Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 684 (11th Cir. 2001). Although a court must assume the truthfulness of the complaint's factual allegations, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).

DISCUSSION

Plaintiffs raise four claims: negligent design and manufacture, negligent failure to warn, negligent remediation, and concealment/suppression. Dkt. No. 23 at 19-32. They also seek to bring this case as a class action. Id. at 32. For the reasons that follow, the first two claims survive in part, as do the class allegations.

I. PLAINTIFFS' NEGLIGENT DESIGN AND MANUFACTURE CLAIM IS DISMISSED IN PART.

Plaintiffs allege four categories of injuries from Argos's negligent design and manufacture: (a) needing to "inspect and remedy, replace and remove the defective concrete"; (b) "other damages yet to be identified"; (c) dangers to Plaintiffs' health and that of their visitors; and (d) the need to clean, inspect, remedy, repair, and remove non-concrete property due to dust damage. Dkt. No. 23 at 24. Only the last allegation survives dismissal.

To prove negligent design and manufacture, Plaintiffs must establish four elements:

(1) A legal duty to conform to a standard of conduct raised by the law . . . ; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiffs legally protected interest as a result of the alleged breach of the legal duty.

Coney v. Mylan Pharms., Inc., No. 6:11-CV-35, 2012 WL 170143, at *6 (S.D. Ga. Jan. 19, 2012) (quoting Dixie Grp., Inc. v. Shaw Indus. Grp., Inc., 693 S.E.2d 888, 895 (Ga. Ct. App. 2010) (quoting Bradley Ctr., Inc. v. Wessner, 296 S.E.2d 693, 695 (Ga. 1982) (citation omitted))).²

A. The Claim Is Dismissed as to Inspecting, Removing, and Replacing Defective Concrete.

Plaintiffs allege that Argos's negligence has required them to "inspect and remedy, replace and remove the defective concrete." Dkt. No. 23 at 24. This allegation must be dismissed under Georgia's economic loss rule. "[T]here can be no action in negligence to recover the loss of the economic value of a defective product . . . ." Vulcan Mats. Co. v. Drilltech, Inc., 306 S.E.2d 253, 254 (Ga. 1983). Plaintiffs want to recover in negligence for the loss of the value of the defective concrete. They cannot do so.³

Plaintiffs contend that they in fact want to recover for negligent construction. Dkt. No. 37 at 16. But negligent construction does not apply to providers of building supplies like Argos-only providers of building services. See Unger v. Bryant Equip. Sales & Servs., Inc., 335 S.E.2d 109, 111 (Ga. 1985); Fields Bros. Gen. Contractors, Inc. v. Ruecksties, 655 S.E.2d 282, 285 (Ga. Ct. App. 2007); Fussell v. Carl E. Jones Dev. Co., 428 S.E.2d 426, 427 (Ga. Ct. App. 1993) ("[A] negligent construction claim arises . . . from breach of a duty implied by law to perform the work in accordance with industry standards." (emphasis added)); Howell v. Ayers, 202 S.E.2d 189, 190-91 (Ga. Ct. App. 1973) (describing negligentconstruction as part of implied duty found in contracts for services). Argos's motion to dismiss is therefore GRANTED as to Plaintiffs' allegation of damage to their concrete.

B. The Claim Is Dismissed as to Unidentified Damages.

Plaintiffs next allege that Argos's negligence has caused them "damages yet to be identified." Dkt. No. 23 at 24. This pleading is too vague, so Argos's motion to dismiss is GRANTED as to it. See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (observing complaint must "give the defendant fair notice of what the . . . claim is" (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated in other part, Twombly, 550 U.S. at 561-63)).

C. The Claim Is Dismissed as to Health.

Third, Plaintiffs allege that concrete dust threatens their health and that of their visitors. Dkt. No. 23 at 24. This allegation must also be dismissed as too vague.

Plaintiffs allege two facts. They say that concrete dust "is known to increase the risk of silicosis, lung cancer, other nonmalignant respiratory disease, as well as renal and autoimmune problems." Id. at 12. This does not adequately allege "injury to life or limb" under Georgia law. Parker v. Wellman, 230 F. App'x 878, 881 (11th Cir. 2007) (per curiam) (unpublished opinion). Alleging "subclinical and cellular damage" is insufficient without "an identifiable physicaldisease, illness, or impairing symptoms." Id. at 882. Thus, allegations of mere risk are not enough to survive dismissal.

Nor is Plaintiffs' allegation that they "have experienced increased respiratory symptoms." Dkt. No. 23 at 15. Plaintiffs must allege "identifiable" symp...