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From Products Liability Law Daily, September 24, 2015

Risk of airborne PCBs not foreseeable in 1961 when caulk was used in new school

By John W. Scanlan, J.D.

The manufacturer of polychlorinated biphenyls (PCBs) could not be held liable for airborne contamination that was discovered in a Massachusetts school in 2010 because the risks of airborne PCB contamination were not reasonably foreseeable when PCB-containing caulk was used in building the school in 1961, the U.S. District Court for the District of Massachusetts ruled in granting summary judgment to Pharmacia Corp. A claim for violation of the state’s consumer protection statute for breach of a continuing duty to warn also failed (Town of Lexington v. Pharmacia Corp., September 23, 2015, Casper, D.).

Background. In 2010, the town of Lexington, Massachusetts began a remediation project after discovering that concentrations of airborne PCBs in one of its elementary schools exceeded U.S. Environmental Protection Agency (EPA) public health guidelines. According to Lexington, PCBs were present in the caulk used at the school and eventually began leaking into the air. Lexington asserted that Monsanto was the sole manufacturer of polychlorinated biphenyls (PCBs) in the United States between 1935 and 1978 before they were banned in 1979. Monsanto sold PCBs to other companies that used them to make caulk and other building materials. In 1997, after spinning off its chemical business unit into Solutia, Inc., Monsanto was acquired by Pharmacia & Upjohn in 2000. The new entity adopted the name Pharmacia Corp. before spinning off its agricultural business to an entity that adopted the Monsanto name.

Lexington brought claims against Pharmacia, Solutia, and Monsanto for breach of implied warranty of merchantability based on design defect, breach of implied warranty of merchantability based on failure to warn; and violation of the Massachusetts consumer protection statute. It sought recovery for environmental remediation of property damages as a result of PCB contamination at the school. After the court denied the defendants’ motion to dismiss, Pharmacia moved for summary judgment, arguing that Lexington had not shown that Pharmacia’s predecessor manufactured the PCBs found at the school, the existence of a defect in PCBs, and the existence of a cognizable injury.

Identification of manufacturer. Although Lexington had no direct evidence for its assertion that Pharmacia had manufactured the PCBs in the caulk used in the school, Pharmacia’s acknowledged dominance of the U.S. market for PCBs provided sufficient support at the summary judgment stage. Lexington also relied upon the testimony of its rebuttal expert; the court noted that her testimony was not part of Lexington’s case in chief, but the evidence was sufficient even without her testimony.

Injury. Lexington demonstrated that it had a cognizable injury because it was not required to show privity of contract, as the injury occurred on or after December 16, 1973, when Massachusetts eliminated its privity requirement. Pharmacia had argued that the injury, if any, occurred in 1960 or 1961 when the caulk was installed in the school, but Lexington argued that its injury could not have occurred any earlier than September 2009, when the EPA issued guidelines on PCB contamination of indoor air at schools and recommended testing for schools constructed between 1950 and 1978. The record indicated that caulk began releasing PCBs into the air beginning upon installation and continuing for decades, but methods for testing airborne PCBs were not developed until the 1980s, and Lexington was not aware of the need for testing until release of the EPA guidelines in 2009. The interests of fairness that underlie the discovery rule suggested its extension to the question of the date of the injury for purposes of the privity requirement. The court determined that it was unnecessary to determine the precise date of the injury because even according to Pharmacia, the earliest date by which Lexington could have been on notice of the need for testing was in 1996, which was well after 1973.

Design defect. However, Lexington did not meet its evidentiary burden regarding the existence of a design defect because it had not offered expert testimony showing that Pharmacia’s design of PCBs was defective. The testimony provided by Lexington’s expert described the characteristics of PCBs but did not identify why Pharmacia’s design was defective. Lexington argued that it did not need to allege a specific defect in PCBs because they were inherently dangerous and their risks so far outweighed their benefits that they were banned by federal law in 1979. However, the recognition by Congress in 1979 of their inherent dangers did not show that these risks were reasonably foreseeable in 1961, when the caulk was installed. The evidence did not show that Pharmacia knew at the time of the inherent dangers of PCBs generally or of the risk that they would volatilize into airborne form after being installed as a part of caulk. Citing the examples of cigarettes and lead paint, the court stated that the case law supported the proposition that an inherent danger in a product does not conclusively determine the existence of a design defect because a defective condition cannot arise from an inherent characteristic of a product. Lexington’s argument that Pharmacia should have manufactured a different plasticizer instead of PCBs amounted to a compliant that the caulk manufacturer defectively designed the caulk when it chose to use PCBs instead of an alternative plasticizer, but Lexington could not impute the absent caulk manufacturer’s liability (if any) to Pharmacia.

Failure to warn. Similarly, the court granted summary judgment to Pharmacia on Lexington’s breach of warranty claim based on Pharmacia’s failure to warn that the use of PCB-containing building materials could result in airborne PCBs at levels of concern to humans. Lexington did not show that airborne PCB levels presented a reasonably foreseeable risk of harm in 1961. Just as the methods did not exist at that time for Lexington to have discovered its injury, it was unclear how Pharmacia could have warned of it.

Finally, the claim for violation of the state’s consumer protection statute based on a breach of Pharmacia’s alleged continuing duty to warn also failed. Lexington was not a direct purchaser from Pharmacia because an unknown contractor had used an undetermined brand of PCB-containing caulk, and had not shown how Pharmacia could have identified Lexington in order to provide it a warning or communicate the dangers of PCBs to it.

The case is No. 12-11645.

Attorneys: Bryan S. Gowdy (Creed & Gowdy, PA), David S. Mackey (Anderson & Kreiger LLP) and Esther L. Klisura (Sher & Leff, LLP) for Town of Lexington. Carol A. Rutter (Husch Blackwell LLP) for Pharmacia Corp., Solutia, Inc. and Monsanto Co.

Companies: Pharmacia Corp.; Solutia, Inc.; Monsanto Co.

MainStory: TopStory DesignManufacturingNews WarningsNews ChemicalNews MassachusettsNews

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