Sullivan v. Saint-Gobain Performance Plastics Corp.

• Citation: 431 F.Supp.3d 448
• Decision Date: 27 December 2019
• Docket Number: Case No. 5:16-cv-125
• Parties: James D. SULLIVAN, Leslie Addison, William S. Sumner, Jr., Ronald S. Hausthor, Gordon Garrison, Linda Crawford, Ted Crawford, and Billy J. Knight, individually, and on behalf of a Class of persons similarly situated, Plaintiffs, v. SAINT-GOBAIN PERFORMANCE PLASTICS CORPORATION , Defendant.
• Court: U.S. District Court — District of Vermont

431 F.Supp.3d 448

James D. SULLIVAN, Leslie Addison, William S. Sumner, Jr., Ronald S. Hausthor, Gordon Garrison, Linda Crawford, Ted Crawford, and Billy J. Knight, individually, and on behalf of a Class of persons similarly situated, Plaintiffs,

v. SAINT-GOBAIN PERFORMANCE PLASTICS CORPORATION , Defendant.

Case No. 5:16-cv-125

United States District Court, D. Vermont.

Signed December 27, 2019

David F. Silver, Esq., Rachel B. Strecker, Esq., Barr, Sternberg, Moss, Lawrence & Silver, P.C., Bennington, VT, Gary A. Davis, Esq., Pro Hac Vice, James S. Whitlock, Esq., Pro Hac Vice, Douglas A. Ruley, Davis & Whitlock, P.C., Asheville, NC, Emily J. Joselson, Esq., James W. Swift, Esq., Justin G. Sherman, Esq., Langrock Sperry & Wool, LLP, Middlebury, VT, for Plaintiffs.

Bert Wolff, Esq., Pro Hac Vice, David Weinraub, Esq., Pro Hac Vice, Douglas E. Fleming, III, Esq., Pro Hac Vice, Lincoln D. Wilson, Esq., Pro Hac Vice, Marina Schwarz, Esq., Pro Hac Vice, Mark S. Cheffo, Esq., Pro Hac Vice, Paul A. LaFata, Esq., Pro Hac Vice, Rachel Passaretti-Wu, Esq., Pro Hac Vice, Sheila L. Birnbaum, Esq., Pro Hac Vice, Stephen N. Williams, Esq., Pro Hac Vice, Dechert LLP, New York, NY, R. Bradford Fawley, Esq., Fawley, PPLC, Guilford, VT, Timothy C. Doherty, Jr., Esq., Downs Rachlin Martin PLLC, Burlington, VT, for Defendant.

DECISION ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT REGARDING THE REMEDY OF MEDICAL MONITORING AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Geoffrey W. Crawford, Chief Judge

In this groundwater contamination class action, Plaintiffs seek to recover the expense of medical monitoring in future years to determine whether class members who currently test positive for exposure to PFOA have contracted an illness or medical condition associated with exposure to the substance. Defendant opposes the claim on several grounds. These include arguments that the medical monitoring remedy is unavailable under Vermont law and that it is not supported by the particular facts of this case.

FACTS

The court will not repeat the statements of the facts which appear in its prior rulings on the Daubert motion to exclude expert witnesses (Doc. 300) and the ruling on the motion for class certification (Doc. 303). The facts of particular importance to the medical monitoring issue are described below.

PROCEDURAL HISTORY

Following the filing of the complaint in May 2016, the defendant filed a motion to dismiss on abstention grounds (Doc. 8). The court denied that motion in December 2016. (Doc. 29.) In January 2017, the defendant filed its answer and a motion for judgment on the pleadings. (Doc. 34, 35.) The motion sought judgment for Defendant on multiple grounds, including the assertion that "the Court should not permit medical monitoring damages unless the plaintiff can demonstrate a present physical injury." (Doc. 35-1 at 14.) In May 2017, the court declined to rule on the availability of medical monitoring damages at such an early juncture:

The court defers any consideration of the potential remedy of medical monitoring to a time when the factual record is developed. Medical monitoring is not itself a cause of action. It is a form of relief. The court has insufficient information about the need and appropriateness of medical monitoring. The motion to dismiss all claims related to medical monitoring is denied without prejudice to the right of the defendant to renew the motion or to bring the issue back before the court as a motion for partial summary judgment following discovery.

(Doc. 74 at 14.)

Discovery commenced in February 2017. (Doc. 43.) The issue of medical monitoring arose again in the context of Defendant's motion to compel the production of medical records of the individual plaintiffs. (Doc. 83.) In September, the court granted the motion to compel, only limiting the length of time for which records must be produced. (Doc. 83.) The court described the dispute over the availability of medical monitoring and again declined to issue a ruling on the scope of the potential remedy:

The discovery motion before the court provides an inadequate basis on which to make a decision which will affect the rest of the case. It is too early to make a fundamental mistake, and there is no need to do so. There are good reasons to wait before committing to one theory of the case.

(Doc. 105 at 6.) Over Plaintiffs' objection, the court permitted discovery into Plaintiffs' primary care records for 20 years with a provision for additional requests if these records provided any basis for a belief that other records might contain information about "potential exposure to toxins or treatment for conditions related to PFOA exposure." (Id. at 8.) Discovery is now virtually complete. (See Doc. 323.) The time has arrived for a ruling on the availability of a medical monitoring remedy at trial.

In the course of a pre-trial conference in September 2019, the court ordered the parties to complete briefing on the medical monitoring issue by November 1, 2019, with Defendant's summary judgment motion due on the same date. The parties have been helpful in complying with this request. Plaintiffs have filed a timely motion for summary judgment on the medical monitoring issue. (Doc. 310.) Defendant has filed a response as well as its own motion for summary judgment. (Docs. 320, 321.) Plaintiff filed a response to Defendant's motion for summary judgment (Doc. 329.) Defendant filed a reply. (Doc. 333.)

ISSUES PRESENTED

The issues raised by the parties and addressed by the court are:

• Does Vermont law permit the remedy of medical monitoring?

This issue is primarily addressed by the parties in the context of Plaintiffs' motion for summary judgment.

• As to medical monitoring, does the factual record permit entry of summary judgment in favor of either party?

This issue is raised in both parties' motions for summary judgment.

The court will issue a separate ruling on Defendant's motion for summary judgment regarding proof of diminution of property value.

I. Remedy or a New Cause of Action?

The court analyzes the availability of medical monitoring as a form of injunctive relief available (or not) under existing Vermont law, not as a new cause of action. This is consistent with the original complaint which seeks "an injunction requiring Defendant to ... [establish and implement] a long-term medical testing protocol for Plaintiffs and Class Members to monitor their health and diagnoses at an early stage any ailments associated with exposure, inhalation or ingestion of PFOA." (Doc. 1 at 26.) It is also consistent with the defendant's position that physical injury is a necessary element of medical monitoring claims and that "[n]either the Vermont Supreme Court nor any other reported decision in Vermont has previously authorized medical monitoring damages as a form of relief for asymptomatic plaintiffs." (Doc. 35-1 at 20.)

In the most recent round of briefing, the plaintiffs describe medical monitoring as a proposed remedy. They assert that "[c]onsistent with Stead and Vermont Supreme Court decisions, Vermont would recognize the remedy of medical monitoring." (Doc. 310 at 9.) The defendant argues against permitting medical monitoring either as a remedy for existing torts or as an independent cause of action. (Doc. 320 at 9–25.) Its principal objection is that Vermont common law requires physical injury as an element for damages in tort causes of action. This argument applies equally to existing and to as-yet-unrecognized causes of action.

Focusing on whether medical monitoring is a permissible remedy under causes of action already recognized by the Vermont state courts is consistent with principles of federalism which guide a district court applying state law in a diversity case. The federal courts do not serve as engines for change of state common law. See City of Johnstown v. Bankers Std. Ins. Co. , 877 F.2d 1146, 1152 (2d Cir. 1989) ("Our role as a federal court sitting in diversity is ... not to adopt innovative theories that may distort established state law."). There is no need to predict whether the Vermont Supreme Court would recognize a new tort theory when the same question can be answered by considering existing tort law in Vermont. The court is satisfied that analyzing medical monitoring in the light of a remedy for existing causes of action does not foreclose arguments made by either side and fairly addresses the physical injury rule upon which Defendant relies.

II. Scope and Purpose of the Physical Injury Rule in Vermont

Defendant's primary objection to recognition of a medical monitoring remedy arises from the application of the physical injury rule in Vermont law. Defendant argues that because the individual plaintiffs and the members of the exposure class have suffered no damages from an illness caused by exposure to PFOA, they cannot recover the cost of medical monitoring to detect its future onset.

Vermont follows the majority rule in the United States by requiring physical injury for many torts. Exceptions include reputational torts such as libel and slander, business torts such as interference with contractual relations, and claims of professional negligence. Defendant is correct in observing that for most claims of negligence, physical injury has long been a required element.

The physical injury rule is not a shibboleth to be honored without understanding its purpose and origin. It serves two primary functions—neither of which is relevant here. In applying the physical injury rule, it is important to consider why the rule exists and whether these purposes are at work in this case.

First, the rule operates as one of the means to express and enforce the rule that in most circumstances, parties to a contract have no tort duty to protect one another from economic loss. See O'Connell v. Killington, Ltd. , 164 Vt. 73, 665 A.2d 39 (1995) (ski area has no duty to protect the litigation interest of a skier injured in a collision on the slopes). In this...