Town of Lexington v. Pharmacia Corp.
| Decision Date | 23 September 2015 |
| Docket Number | Civil Action No. 12-11645 |
| Parties | Town of Lexington, Plaintiff, v. Pharmacia Corporation, Solutia, Inc., and Monsanto Company, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Bryan S. Gowdy, Creed & Gowdy, P.A., Jacksonville, FL, David S. Mackey, Melissa C. Allison, Scott P. Lewis, Anderson & Kreiger LLP, Cambridge, MA, Esther L. Klisura, Sher & Leff, LLP, San Francisco, CA, Jon-Jamison Hill, Theodora Oringher, Robert S. Chapman, Sauer & Wagner LLP, Los Angeles, CA, Kevin J. Madonna, Robert F. Kennedy, Kennedy & Madonna, LLP, Hurley, NY for Plaintiff.
Carol A. Rutter, Robyn D. Buck, Husch Blackwell LLP, St. Louis, MO, Richard P. Campbell, Brandon L. Arber, Diana A. Chang, Richard L. Campbell, Sean M. Hickey, Campbell, Campbell, Edwards & Conroy, PC, Boston, MA, for Defendants.
CASPER
Plaintiff Town of Lexington ("Lexington") has filed this lawsuit against Defendants Pharmacia Corporation ("Pharmacia"), Solutia, Inc. and Monsanto Company for (1) breach of implied warranty of merchantability based on design defect; (2) breach of implied warranty of merchantability based on failure to warn; and (3) violation of Mass. Gen. L. c. 93A. D. 1. Pharmacia has moved for summary judgment. D. 140. For the reasons stated below, the Court ALLOWS the motion.
The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a)
. "A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law." Santiago–Ramos v. Centennial P.R. Wireless Corp. , 217 F.3d 46, 52 (1st Cir.2000) (quoting Sánchez v. Alvarado , 101 F.3d 223, 227 (1st Cir.1996) ). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo , 215 F.3d 124, 132 (1st Cir.2000) ; seeCelotex v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)
, but "must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor." Borges ex rel. S.M.B.W. v. Serrano–Isern , 605 F.3d 1, 5 (1st Cir.2010). "As a general rule, that requires the production of evidence that is ‘significant[ly] probative.’ " Id. (quoting Anderson , 477 U.S. at 249, 106 S.Ct. 2505 ) (alteration in original). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc. , 556 F.3d 20, 25 (1st Cir.2009).
Lexington brought this action seeking recovery for environmental remediation of property damage allegedly suffered because of the presence of polychlorinated biphenyls ("PCBs"), which were banned by Congress as of 1979, in the indoor air of the Estabrook Elementary School ("Estabrook"). D. 1 ¶¶ 30, 37-38. Lexington alleges that PCBs were present in the caulk used at Estabrook and at some point they leaked into the school indoor air. D. 232 at 4. Pharmacia, in its previous incarnation, sold PCBs to intermediaries who then used them to manufacture caulk and other building materials. Id. at 3. Lexington contends that Pharmacia was "the near-exclusive source of all PCBs used in the United States" during the relevant time period and thus is responsible for the property damage they allegedly caused. Id. at 2.
In September 2009, the United States Environmental Protection Agency ("EPA") issued guidelines regarding advised limits on PCB levels in school indoor air and recommending testing for PCBs in schools built or renovated between 1950 and 1978. Id. at 3. Parents of school children in Lexington raised the issue of PCB contamination with the school district. Id. Lexington decided to conduct environmental testing in its schools to determine whether PCBs were present. Id. at 4. The testing at Estabrook revealed PCB levels in caulk at levels above federal regulations and that the PCB levels in the indoor air at Estabrook exceeded the limits indicated in the EPA guidelines released in September 2009. Id. Lexington then embarked on a remediation project at Estabrook, the costs of which it now seeks to recover from Pharmacia and its co-defendants. D. 1 ¶¶ 52, 55.
On September 4, 2012, Lexington brought this suit alleging that it sustained property damage due to Pharmacia's breach of the implied warranty of merchantability and violation of Mass. Gen. L. c. 93A. D. 1. The defendants moved to dismiss, D. 22, and for a more definite statement, D. 24. The Court denied both motions. D. 53 (). Pharmacia has now moved for summary judgment. D. 140. The Court held a hearing on the pending motion and took the matter under advisement. D. 295.
A plaintiff asserting a breach of warranty claim must show "(1) that the defendant manufactured or sold the product; (2) that a defect or unreasonably dangerous condition existed at the time the product left the defendant's hands so that it was not reasonably suitable for the ordinary uses for which goods of that kind were sold; (3) that at the time of [its] injury, the plaintiff was using the product in the manner that the defendant intended or that could reasonably be foreseen; and (4) that the defect or unreasonably defective condition ... was a legal cause of the plaintiff's injury." Alves v. Mazda Motor of Am., Inc. , 448 F.Supp.2d 285, 300 (D.Mass.2006)
(quoting Lally v. Volkswagen Aktiengesellschaft , 45 Mass.App.Ct. 317, 337, 698 N.E.2d 28 (1998) ). Pharmacia argues that Lexington's case is lacking as to a showing that Pharmacia manufactured the PCBs found at Estabrook, evidence of a design defect in PCBs and the existence of a cognizable injury.
Pharmacia first argues that Lexington cannot identify Pharmacia as the manufacturer of the PCBs discovered at Estabrook. D. 147 at 2-3, 13; D. 278 at 5-6. Lexington has no direct evidence that Pharmacia produced the PCBs used in Estabrook's caulking, but Lexington points to evidence that Pharmacia was the sole domestic source of PCBs during the relevant time period. D. 232 at 7. Lexington also relies upon the conclusion of its rebuttal expert Fan Li ("Li") that "the probability that PCBs contained in caulk used in the school buildings built or renovated between 1950 and 1978 in Massachusetts ... were produced by [Pharmacia] is at least 97.3%."1 D. 232 at 7; D. 232-1 at 44 ¶ 2.
One problem with Lexington's proffer is that Li is designated as a rebuttal expert and thus not as evidence in Lexington's case in chief. Maraj v. Massachusetts , 953 F.Supp.2d 325, 328 (D.Mass.2013)
. The Court concludes, however, that even without Li's opinion and construing the undisputed facts in Lexington's favor, Pharmacia's acknowledged dominance of the domestic market provides sufficient evidentiary support for Lexington's contention that Pharmacia manufactured the PCBs. Pharmacia certainly disputes the inference Lexington draws from Pharmacia's domestic market share, noting that the decisions regarding whether to incorporate PCBs into caulk and in what proportion were solely in the discretion of the caulk manufacturer, which is not identifiable and thus not a party to this proceeding, and that Pharmacia's share of the global PCB market was less than forty percent.2 D. 147 at 13. At the summary judgment stage, however, Lexington's evidence is satisfactory and a jury could weigh that evidence against Pharmacia's exculpatory evidence on this point. Ultimately, however, the issue of identification of the manufacturer is moot given the other infirmities in Lexington's case discussed below.
Massachusetts law requires that there was privity of contract between a plaintiff seeking to hold a defendant liable for breach of warranty arising from an injury occurring prior to December 16, 1973. Thayer v. Pittsburgh–Corning Corp. , 45 Mass.App.Ct. 435, 438, 703 N.E.2d 221 (1998)
. If Lexington's injury preceded that date, its claim fails because there was no privity between Lexington and Pharmacia, the caulk at issue having been manufactured and installed by intermediaries. If Lexington's injury occurred after 1973, then privity is not required.
Pharmacia contends that Lexington's injury occurred, if at all, in 1960 or 1961 when the caulk containing PCBs was installed at Estabrook. D. 147 at 15. Pharmacia relies primarily, as it has in the past, on Commonwealth v. Johnson Insulation , 425 Mass. 650, 682 N.E.2d 1323 (1997)
. It also points to the unrebutted testimony of Kevin Coghlan ("Coghlan"), a scientist retained by Lexington to address contamination at Estabrook, confirming that the volatilization of PCB molecules "began immediately when the caulk was installed" at Estabrook. D. 278 at 16. Coghlan also deemed it likely that "airborne levels of PCBs would have been highest in the earliest days of [Estabrook's] operation." Id. at 17.
Lexington, on the other hand, urges an injury date of no earlier that September 2009, when the EPA issued its guidelines concerning PCB contamination of indoor air at schools. D. 232 at 14-15. It counters Coghlan's testimony with the opinion of its expert, Dr. David Macintosh ("Macintosh"), stating that PCB-containing caulk "can continue to release vapor-phase PCBs into the air for decades."3 D. 232 at 15; D. 232-1 at 48-49 ¶ 25.
The question of when Lexington's alleged injury occurred was raised by the defendants in their motion to dismiss. Judge Boal, in her report and recommendations,...
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