Town of Princeton v. Monsanto Co.

• Decision Date: 10 August 2016
• Docket Number: Civil Action No.: 15-cv-40096
• Citation: 202 F.Supp.3d 181
• Parties: TOWN OF PRINCETON, Plaintiff, v. MONSANTO COMPANY, SOLUTIA INC., and Pharmacia Corporation, Defendants.
• Court: U.S. District Court — District of Massachusetts

202 F.Supp.3d 181

TOWN OF PRINCETON, Plaintiff,

v.MONSANTO COMPANY, SOLUTIA INC., and Pharmacia Corporation, Defendants.

Civil Action No.: 15-cv-40096

United States District Court, D. Massachusetts.

Signed August 10, 2016

Bryan S. Gowdy, Creed & Gowdy, P.A., Jacksonville, FL, Esther L. Klisura, Kieran P. Ringgenberg, Richard W. Head, SL Environmental Law Group PC, San Francisco, CA, Kevin J. Madonna, Kennedy & Madonna, LLP, Hurley, NY, for Plaintiff.

Richard L. Campbell, Brandon L. Arber, Diana A. Chang, White and Williams LLP, Richard P. Campbell, Campbell, Campbell, Edwards & Conroy, PC, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

Denise J. Casper, United States District Judge

I. Introduction

Plaintiff Town of Princeton ("Princeton") has filed this lawsuit against Defendants Monsanto Company, Solutia Inc. and Pharmacia Corporation ("Pharmacia") (collectively "Defendants") alleging breach of the implied warranty of merchantability (defective design), breach of the express warranty of merchantability (failure to warn), negligence and violation of the Massachusetts Consumer Protection Act based upon Defendants' conduct in manufacturing and distributing a chemical called polychlorinated biphenyls ("PCBs"). D. 1. Defendants now move to dismiss. D. 15. For the reasons stated below, the Court DENIES in part and ALLOWS in part the motion.

II. Standard of Review

On a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court assesses whether the facts alleged "plausibly narrate a claim for relief." Schatz v. Republican State Leadership Comm. , 669 F.3d 50, 55 (1st Cir.2012) (citation omitted). That assessment requires a two-step, context-specific inquiry. See García – Catalán v. United States , 734 F.3d 100, 103 (1st Cir.2013). The Court begins by separating the factual allegations in the complaint from the conclusory legal allegations. Id. The factual allegations are accepted as true, while legal conclusions may be disregarded. Id. Moreover, the Court "draw[s] all reasonable inferences in favor of the plaintiffs." Gargano v. Liberty Int'l Underwriters, Inc. , 572 F.3d 45, 48 (1st Cir.2009) (citation omitted). Taken together, the factual allegations must give rise to the "reasonable inference that the defendant is liable for the misconduct alleged." Haley v. City of Boston , 657 F.3d 39, 46 (1st Cir.2011). The claim must be, in essence, "plausible on its face." García – Catalán , 734 F.3d at 103. "In determining whether a [claim] crosses the plausibility threshold," the Court is instructed to "draw on its judicial experience and common sense." Id. at 103 (internal quotation marks and citation omitted).

"Affirmative defenses, such as the statute of limitations, may be raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), provided that the facts establishing the defense [are] clear ‘on the face of the plaintiff's pleadings.’ " Santana – Castro v. Toledo – Dávila , 579 F.3d 109, 113–14 (1st Cir.2009) (alteration in original) (quoting Trans – Spec Truck Serv., Inc. v. Caterpillar, Inc. , 524 F.3d 315, 320 (1st Cir.2008) ) (internal quotation marks omitted). Dismissal based upon timeliness is appropriate where "the pleader's allegations leave no doubt that an asserted claim is time-barred." LaChapelle v. Berkshire Life Ins. Co. , 142 F.3d 507, 509 (1st Cir.1998) (citations omitted). If "the dates included in the complaint show that the limitations period has been exceeded and the complaint fails to ‘sketch a factual predicate’ that would warrant the application of either a different statute of limitations period or equitable estoppel, dismissal is appropriate." Santana – Castro , 579 F.3d at 113–14 (quoting Trans – Spec Truck Serv. , 524 F.3d at 320 ) (internal quotation marks omitted).

III. Factual Background

The following allegations are taken from Princeton's complaint and accepted as true for the purposes of this motion. Princeton is a town existing under the laws of the Commonwealth of Massachusetts. D. 1 ¶ 5. Princeton is the owner of the Thomas Prince School ("Prince School"), an elementary school for approximately 380 students. D. 1 ¶¶ 5, 38. Pharamacia is a Delaware limited liability company with its principle place of business in Peapack, New Jersey. Id. ¶ 6. Solutia Inc. is a Delaware corporation with its principal place of business in St. Louis, Missouri. Id. ¶ 7. Today Monsanto Company¹ is known as Pharmacia. Id. ¶ 3. Monsanto Company and Solutia, Inc. are affiliated companies that have assumed liabilities related to the historical manufacture of PCBs. Id.

Plaintiff alleges that from 1935 to 1978 Monsanto Company was the exclusive manufacturer of PCBs in the United States. Id. Princeton further alleges that PCBs are odorless and tasteless man-made chemicals that have been used in a wide range of industrial applications. Id. ¶¶ 12, 14. Between 1950 and 1978, products containing PCBs were widely used in the construction and renovation of buildings, including school buildings, throughout the United States. Id. ¶¶ 15-16. By the late 1960s, public researchers had begun questioning the safety of PCBs. Id. ¶ 29. Effective January 1, 1979, Congress banned most uses of PCBs and authorized the Environmental Protection Agency ("EPA") to apply restrictions to the usage of PCBs. Id. ¶ 31. In 1996, the EPA concluded that PCBs are "probable human carcinogens." Id. ¶ 19. On September 25, 2009, the EPA issued a press release "advising school administrators about the presence of PCBs in school buildings built between 1950 and 1978." Id. ¶ 2. Concurrent with the press release, for the first time the EPA published public health levels for PCBs in school indoor air. Id.

PCBs have been demonstrated to affect the immune system, decreasing resistance to pneumonia

and infections and increasing the risk of non-Hodgkin's lymphoma. Id. ¶ 21. PCBs are also associated with elevations in blood pressure, serum triglycerides and serum cholesterol. Id. ¶ 25. The neurological effects of PCBs, to which children are particularly vulnerable, include significant deficits in visual recognition, short-term memory and learning. Id. ¶ 23.

PCBs have several characteristics, including migration and degradation patterns, that render exposure to the chemicals increasingly risky as times passes. Id. ¶ 17. Princeton alleges that in 1977, Old Monsanto had discontinued the manufacture of PCBs, although the company's PCBs continued to be sold and distributed through the end of 1978. Id. ¶ 31. Princeton further alleges that as early as the 1930s Old Monsanto knew of the toxicity of PCBs, yet willfully failed to provide adequate warnings. Id. ¶¶ 27-28.

The Prince School was originally constructed in 1962. Id. ¶ 39. Princeton alleges that tests conducted at the Prince School in April 2011 detected PCBs at concentrations in excess of 50 parts per million in window caulking and glazing. Id. ¶ 40. Those detection levels exceeded the PCB levels authorized by the EPA. Id. In June 2011, additional samples taken at the Prince School confirmed the presence of PCBs in window caulking and demonstrated that PCBs were also present in joint caulking. Id. ¶ 41. In response to these high detection levels in the building materials, indoor air samples were collected from the six classrooms for which windows were scheduled to be replaced as part of the Prince School's window replacement project: those indoor air samples were also found to contain concentrations of PCBs above advisory levels established by the EPA. Id. ¶ 42. Thus, a more comprehensive indoor air sampling program that evaluated indoor air within the entire school building was undertaken on August 20, 2011. Id. ¶ 43. That comprehensive review found, inter alia , PCB levels above the EPA's guidance level in two additional classrooms. Id. On September 1, 2011, the PCB contamination prevented third, fourth and fifth graders from attending class at the Prince School. Id. ¶ 44. The students were bused to another school for approximately one year. Id. Princeton has since worked with the EPA and a contractor, Environmental Compliance Services, to clean up the PCBs and establish a monitoring and management plan. Id. ¶¶ 45-48. Based upon the fact that the Prince School was constructed when Old Monsanto produced at least 98% of the PCBs in the United States, Princeton alleges that the PCBs at the Prince School were manufactured by Defendants. Id. ¶ 49.

On September 4, 2012, Lexington, another town in Massachusetts, filed a putative class action in this Court against the same defendants named here (the "Town of Lexington class action"). Id. ¶ 35. Princeton was a member of the proposed class. Id. On behalf of the proposed class, Lexington alleged PCB contamination in its school and other Massachusetts schools. Id. On March 24, 2015, this Court denied Lexington's motion to certify the putative class. Id. ¶ 36.

IV. Procedural History

Princeton instituted this action on July 1, 2015. D. 1. Defendants now move to dismiss. D. 15. The Court heard the parties on the pending motion and took the matter under advisement.

V. Discussion

A. Statute of Limitations Standard

Tort claims typically accrue, and thus the statute of limitations starts to run, at the time the plaintiff is injured. See Taygeta Corp. v. Varian Assocs., Inc. , 436 Mass. 217, 229, 763 N.E.2d 1053 (2002) (citations omitted); Bowen v. Eli Lilly & Co. Inc. , 408 Mass. 204, 205, 557 N.E.2d 739 (1990). In cases involving inherently unknowable dangers, however, the discovery rule provides that causes of action do not accrue until the plaintiff learns, or reasonably should have learned, that she has been harmed by the defendant's conduct. See Taygeta , 436 Mass. at 229, 763 N.E.2d 1053 (citations omitted). The claim, thus, accrues when the plaintiff "has knowledge of both her injury and its likely cause or has sufficient facts available such that she reasonably should discover the probable causal relationship between her injury and conduct of the defendant." Errichiello...