Brown et al v. Saint-Gobain Performance Plastics Corporation et al
///ORDER granting in part and denying in part 82 Motion to Dismiss for Failure to State a Claim; granting 88 Motion Substitute. Defendants' motion to dismiss is granted as to Count 5 and denied as to remaining claims. Plaintiffs to file an amended complaint as outlined by December 13, 2017. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Kevin Brown, et al.
Civil No. 16-cv-242-JL
Opinion No. 2017 DNH 246
Plastics Corp., et al.
Resolution of the defendants’ motions to dismiss this
environmental trespass action turns on whether the plaintiffs
have pleaded injuries recognized by New Hampshire law.
Plaintiffs in this consolidated, putative class action allege
that defendant Saint-Gobain Performance Plastics Corporation’s
Merrimack, New Hampshire plant released chemicals that
contaminated the local groundwater.1
They seek to recover
against Saint-Gobain and the facility’s general manager, Gwenael
Busnel, for damages to plaintiffs’ property, including
The plaintiffs filed a series of actions against Saint-Gobain
and the plant’s general manager arising from the chemical
contamination. Specifically, one set of plaintiffs filed two
proposed class actions in Hillsborough Superior Court against
Saint-Gobain and Gwenael Busnel, which defendants removed to
this court. A second set of plaintiffs filed a proposed class
action in this court against Saint-Gobain alone. A third set of
plaintiffs filed an individual action against Saint-Gobain in
this court. The court consolidated these cases for all
purposes, see Order of Consolidation (doc. no. 48), and
appointed interim lead class counsel, see Order of May 11, 2017
(doc. no. 76).
diminished property value, and accrual of costs associated with
monitoring for potential injuries caused by ingesting the
chemicals at issue.
The court has subject-matter jurisdiction over this action
under the Class Action Fairness Act.
28 U.S.C. § 1332(d)(2)(A).
The defendants move to dismiss the complaint in its entirety.
They contend that the plaintiffs have not pleaded any present,
physical injury to their property or their persons, and that the
economic loss doctrine precludes their recovery in tort for
purely economic damages.
They further argue that plaintiffs
have failed to plead intentional trespass and that New Hampshire
law does not recognize their claims for negligent failure to
warn and unjust enrichment.
The court denies the majority of the defendants’ motion.
At this stage of the litigation, the property-owning plaintiffs
have pleaded facts, including present, physical damage to their
property and contamination of groundwater, sufficient to
maintain their claims for trespass, nuisance, and negligence.
The defendants’ motion to dismiss the medical-monitoring
plaintiffs’ claims is likewise denied at this juncture.
New Hampshire has not recognized negative unjust enrichment -that is, unjust enrichment through a defendant’s failure to
incur costs rather than through receipt of a benefit -- as a
cause of action, however, the court dismisses the plaintiffs’
unjust enrichment claim.
Applicable legal standard
A plaintiff’s complaint must include “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Petrenko, 792 F.3d 173, 179 (1st Cir. 2015) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).
This standard “demands that a
party do more than suggest in conclusory terms the existence of
questions of fact about the elements of a claim.”
A.G. ex rel.
Maddox v. Elsevier, Inc., 732 F.3d 77, 81 (1st Cir. 2013).
ruling on such a motion, the court accepts as true all wellpleaded facts set forth in the complaint and draws all
reasonable inferences in the plaintiff’s favor.
Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010).
With the facts construed in this manner, “questions of law [are]
ripe for resolution at the pleadings stage.”
Simmons v. Galvin,
575 F.3d 24, 30 (1st Cir. 2009).
This proposed class action arises out of the release of
toxic chemicals from Saint-Gobain’s manufacturing plant in
Merrimack, New Hampshire.
Saint-Gobain has owned and operated a
plant in Merrimack since 2000.2
Defendant Busnel has served as
general manager of the plant since 2012.3
At that location,
Saint-Gobain used ammonium perflurooctonoate (AFPO), a
derivative of perfluorooctanoic acid (PFOA)4 in, for example, a
process that coated woven fiberglass and other fabric with
In early 2016, Saint-Gobain reported the presence of
elevated levels of PFOA in the municipal water supplied by the
Merrimack Village District Water Works.6
Following this report,
the New Hampshire Department of Environmental Services
discovered the presence of PFOA in residential wells in the
vicinity of Saint-Gobain’s plant and recommended that certain
residents of surrounding cities and towns not drink or cook with
Plaintiffs allege that the plant was previously operated by
ChemFab Corporation, which Saint-Gobain acquired in 2000.
Compl. (doc. no. 80) ¶ 12.
Id. ¶ 9.
PFOA and AFPO are members of a family of per- and
polyfluoroalkyl substances (PFAS). In their complaint, the
plaintiffs use the terms PFAS and PFOA interchangeably to refer
to both chemicals collectively. See id. ¶ 13. The court refers
to them collectively as PFOA, except where quoting the
Id. ¶¶ 13-14.
Id. ¶ 37.
water from those wells, or consume vegetables from gardens where
PFOA-contaminated water was used.7
The plaintiffs allege that Saint-Gobain released PFOA into
the air, soil, and water in the vicinity of its Merrimack
Because PFOA is water-soluble, it “can migrate
readily from soil to groundwater” and, because it is
biologically and chemically stable, it can “remain present in
the environment long after [it is] released.”9
The United States
Environmental Protection Agency associates exposure to PFOA with
increased risk for certain types of cancer, as well as other
illnesses and conditions.10
Plaintiffs further allege that Saint-Gobain was aware of
the potential for PFOA contamination arising from its
manufacturing processes in light of contamination of the public
drinking water supply near its Hoosick, New York plant, which it
reported to the United States Environmental Protection Agency in
Plaintiffs also allege that Saint-Gobain removed its
operations from a plant in North Bennington, Vermont, to the
Id. ¶¶ 42-44.
Id. ¶¶ 13-15.
Id. ¶ 13.
Id. ¶ 46-47.
Id. ¶¶ 17-20.
Merrimack facility after Vermont imposed tighter environmental
protection regulations to reduce emissions of PFOA.12
this knowledge, plaintiffs allege, Saint-Gobain failed to
install systems to limit PFOA emissions from its Merrimack
The plaintiffs allege that PFOA has contaminated the soil
and water obtained through private wells within a certain
geographic area,14 as well as water in Merrimack and Bedford, New
Hampshire, provided through the Merrimack Village District Water
For all of those who own residential property within
these geographic areas, the plaintiffs seek damages for injury
to their property, including (1) diminished market value,
Id. ¶¶ 21-26.
Id. ¶¶ 27-29.
For purposes of defining the property-owner classes, the
plaintiffs define this area as comprising:
In Bedford and Merrimack, the geographic area west of
the Merrimack River within three (3.0) miles of the
property boundary of the Saint-Gobain Site; in
Litchfield, the geographic area bounded by the
Merrimack River on the west, Cummings Drive on the
South, extended east to the Merrimack River and west
to the Londonderry Town line, and the Londonderry Town
Line on the East and the City of Manchester on the
North and East, and the geographic area in Manchester
bounded by Raymond Wieczorek Drive on the North.
Id. ¶ 60.
Id. ¶¶ 37, 43.
(2) costs incurred to remediate and mitigate the contamination,
and (3) loss of use and enjoyment of their property.16
For all of those who resided in these geographical areas
and consumed water containing defined levels of PFOA for at
least one year, or were born to mothers who consumed such water,
the plaintiffs seek to recover the costs of monitoring for
injuries related to exposure to PFOA in light of their
“significant increased risk of illness, disease or disease
process . . . .”17
The DeBlois plaintiffs, who have opted out of
these classes, seek the same remedies, as well as recovery for
“additional losses including, but not limited to, business
losses, attorney fees for protecting their property rights in
placing the water line, future water expenses and out-of-pocket
Plaintiffs bring claims under four common-law torts:
trespass, nuisance, negligence, and negligent failure to warn.
They also seek to recover under the equitable doctrine of unjust
The defendants move to dismiss plaintiffs’
negligence, nuisance, and trespass claims, arguing that the
Id. ¶ 54.
Id. ¶ 55.
Id. ¶ 56.
plaintiffs claiming property damage have not alleged any
tangible damage to their property, but seek only economic
damages foreclosed in tort by the economic loss doctrine or to
recover for groundwater contamination, for which they have no
private cause of action.
Defendants further argue that the
plaintiffs seeking medical monitoring have not alleged any
present physical injury.
Finally, they argue that the
plaintiffs have failed to plead all the elements of trespass,
and that plaintiffs, even on the facts construed in their favor,
cannot recover under their negligent failure to warn and unjust
Injury to property
Two sub-classes of plaintiffs claim injuries resulting from
chemical contamination of their real property:
those in the
appropriate geographical areas who own property served by
private wells and those in the relevant towns who own property
served by the Merrimack Village District Water Works.19
defendants move to dismiss the negligence, trespass, and
nuisance claims of these property-owning plaintiffs for failure
to allege present and actual damages to their property.
The allegations in the complaint are, as the defendants
observe, fairly general.
These property-owning plaintiffs
Id. ¶¶ 58, 60-61.
allege that Saint-Gobain, through releasing toxic PFOA into
nearby environs, contaminated the soil, dust, household water
and household water systems, groundwater wells, air, and trees
on the plaintiffs’ property.20
They also allege that the PFOA
contamination “further migrated through the soil and into the
groundwater that Plaintiffs and Class Members have the right to
use and have used for their domestic water supply.”21
As a result of this contamination, they allege, the
property-owning plaintiffs have “suffered the cost of mitigating
the contamination through filters and alternative water
supplies, and the cost of restoring and maintaining the water”
and have had to pay to remediate their properties.22
further claim that the value and marketability of their property
has diminished as a result of the contamination.23
claim loss of use and enjoyment of their properties, and that
they “have also suffered annoyance, discomfort, and
inconvenience” due to the “contamination of their properties and
water supplies . . . .”24
Id. ¶¶ 15, 39, 48.
Id. ¶ 39, 48.
Id. ¶ 54.
Through these allegations, the property-owning plaintiffs
have pleaded, at the very least, a compensable injury sufficient
to state claims for trespass and nuisance by pleading the
presence of PFOAs in the groundwater serving both private and
municipal water sources.
“[C]ontamination of water with
chemicals having a potential to cause harm is itself an injury
regardless of whether the chemicals are certain to cause the
ultimate harm of which they are capable.”
Energynorth Nat. Gas,
Inc. v. Cont’l Ins. Co., 146 N.H. 156, 164 (2001).
Having established that contamination of water as alleged
here may amount to an injury, the question then becomes whether
it amounts to an injury to the plaintiffs.
In New Hampshire, as
Saint-Gobain observes, “instead of absolute ownership of the
groundwater beneath one’s land, ‘the right of each is only to a
reasonable use or management.’”
In re Town of Nottingham, 153
N.H. 539, 548 (2006) (quoting Bassett v. Salisbury Mfg. Company,
43 N.H. 569, 577 (1862)).
Absent such absolute ownership rights
in groundwater, diminution of groundwater under a landholder’s
property by the State does not amount to a taking.
153 N.H. at 548.
Similarly, “in this state lakes, large natural
ponds, and navigable rivers are owned by the people, and held in
trust by the state in its sovereign capacity for their use and
benefit,” giving rise to a public, not a private, right to use
and benefit from them.
St. Regis Paper Co. v. N.H. Water Res.
Bd., 92 N.H. 164, 170 (1942) (comparing such rights to
traditional riparian rights, “which are property rights and
which may not be invaded or taken from the owner without
The public nature of this right prevented the
plaintiff in St. Regis from successfully challenging the State’s
delegation of authority over such waters to the State Water
Id. at 170-71.
Relying on Nottingham and St. Regis, Saint-Gobain argues
that the property-holding plaintiffs cannot recover for alleged
contamination of the groundwater under their properties.25
plaintiffs are not, however, seeking compensation for a
governmental taking, nor do they challenge the State’s
regulation of navigable waterways.
Instead, they have pleaded
an interference with their use of the groundwater under their
property in light of alleged chemical contamination.
Hampshire Supreme Court has suggested that at least “claims for
diminution in value of private property, lost business
expenditures and other business and economic losses resulting
from [chemical] contamination properly belong to private
parties,” rather than the State as trustee of those waters.
State v. Hess Corp., 161 N.H. 426, 437 (2011), as modified on
denial of reconsideration (Mar. 22, 2011).
Thus, under Hess,
See Defendants’ Mem. (doc. no. 82-1) at 9-10.
the property-owning plaintiffs have an interest sufficient to
state claims at least for economic losses arising from the
presence of contaminated groundwater by alleging diminished
Insofar as damages in trespass and nuisance
actions “are measured primarily by the difference between the
value of the real estate before and after the defendant’s wrong
was committed,” Delay Mfg. Co. v. Carey, 91 N.H. 44, 44 (1940),
the plaintiffs have alleged damage sufficient to state a claim
under those theories.27
See also Soucy v. Royal, 116 N.H. 170,
The Court further concluded that the State, acting as parens
patriae, is “not necessarily preclude[d] . . . from pursuing
damages for the costs of investigating, monitoring, treating,
remediating, replacing, or otherwise restoring [privately-owned]
wells” when “the injury alleged affects the general population
of a State in a substantial way.” Id. It did not, however,
affirmatively hold that the individual property owners may not
recover such damages. Cf. id. at 440 (leaving open the
possibility that “any monetary damages claimed by citizens
individually may be excluded from the State’s recovery” should
private-well owners “actually object to state testing and
treatment of their wells.”).
The defendants also argue that the groundwater contamination
alleged here would amount to a public, rather than a private,
nuisance or trespass, precluding property-owning plaintiffs from
a claim under those theories. See Defendants’ Mem. (doc.
no. 82-1) at 12-14. A private nuisance “may be defined as an
activity which results in an unreasonable interference with the
use and enjoyment of another’s property. A public nuisance, on
the other hand, is an unreasonable interference with a right
common to the general public.” Robie v. Lillis, 112 N.H. 492,
495 (1972) (internal citations and quotations omitted). Where
“[c]onduct which unreasonably interferes with the rights of
others may be both a public and a private nuisance,” id., and
the determining factor is the substantiality of the
172 (1976) (damages in trespass and nuisance “determined by the
difference between the value of the property with and without
the trespass and nuisance”).
It is less clear that the property-owning plaintiffs have
alleged physical damage to their real property sufficient to
recover on a claim for negligence.
“To recover for negligence,
a plaintiff must show that the defendant owes a duty to the
plaintiff and that the defendant’s breach of that duty caused
the plaintiff’s injuries.”
Christen v. Fiesta Shows, Inc., No.
2016-0528, 2017 WL 4400281, at *2 (N.H. Oct. 4, 2017).
Gobain contends that the plaintiffs’ general allegations of
damage do not suffice as allegations of present, physical injury
to their property sufficient to state a claim for negligence,28
and that the economic loss doctrine precludes them from
recovering in negligence for the economic losses discussed
interference, the court is not inclined to dismiss these claims
on this record.
To the extent that the cases from other jurisdictions on which
the defendants rely for the proposition that interference with
groundwater cannot give rise to a private nuisance or trespass
claim, they conflict with Hess, 161 N.H. at 437, and do not
Defendants’ Mem. (doc. no. 82-1) at 10-12.
Id. at 7-8, 10.
“In New Hampshire, the general rule is that ‘persons must
refrain from causing personal injury and property damage to
third parties, but no corresponding tort duty exists with
respect to economic loss.’”
Plourde Sand & Gravel Co. v. JGI
E., Inc., 154 N.H. 791, 795 (2007) (quoting Ellis v. Robert C.
Morris, Inc., 128 N.H. 358, 364 (1986)).
Thus, “a plaintiff may
not ordinarily recover in a negligence claim for purely
Border Brook Terrace Condo. Ass'n v.
Gladstone, 137 N.H. 11, 18 (1993).
As the plaintiffs observe, the economic loss doctrine most
commonly precludes contracting parties from recovering in tort
for purely economic losses associated with that contractual
See Plourde, 154 N.H. at 794 (“[W]here a
plaintiff may recover economic loss under a contract, generally
a cause of action in tort for purely economic loss will not
The parties dispute whether New Hampshire extends the
economic loss doctrine to prohibit recovery in tort for any
economic loss, even one suffered outside of a contractual
The New Hampshire Supreme Court has suggested as
much, see id. at 794-95, and the First Circuit Court of Appeals
has concluded that New Hampshire adopted the economic loss
doctrine in “its broadest form,” under which “the doctrine
reaches beyond the contractual context . . . .”
Indymac Mortg. Servs., 731 F.3d 98, 103–04 (1st Cir. 2013).
But, as the plaintiffs observe, the existence of a contractual
relationship governed the outcome of both of those cases.
Plourde, 154 N.H. at 798 (economic loss doctrine barred tort
recovery where plaintiff’s economic loss arose “solely from
disappointed commercial expectations in that the plaintiff lost
the anticipated profits of its contract with” a third party
(quotations omitted)); Schaefer, 731 F.3d at 106 (plaintiff’s
negligence claims arising out of foreclosure proceedings barred
by economic loss doctrine where alleged duties to provide
information to plaintiff arise from mortgage agreement).
unclear, therefore, whether the economic loss doctrine in New
Hampshire would bar recovery of economic losses in a situation
such as this, where the alleged losses arise from negligence
outside of the context of a contractual or otherwise purely
The court need not definitively resolve this question at
this stage in the proceedings.
The property-owning plaintiffs
have pleaded not only economic damages, but also that they have
suffered damage to their property through the presence of PFOA
in the soil and water, requiring them to mitigate the
contamination and remediate their properties.
allege that the contamination has led to lost use and enjoyment
of those properties.
Though the complaint is not a model of
precision and clarity, and these allegations are less than
robust,30 the court is disinclined, at this stage in the
litigation, to dismiss the plaintiffs’ negligence claim where
they have sufficiently pleaded damages to their property to
maintain claims for the common-law torts of trespass and
nuisance on effectively the same factual bases.
Medical monitoring damages
Two additional sub-classes of plaintiffs seek damages in
the form of costs to cover monitoring for potential medical
conditions arising from their exposure to PFOA through its
presence in the air and soil and through consumption of
Exposure to PFOA in this manner, the
plaintiffs allege, creates a “significant increased risk of
illness, disease or disease process . . . requiring an award of
the cost of a program for medical monitoring for detection of
As an example, as the defendants observed during oral
argument, the property-owning plaintiffs have not clearly
alleged direct damage to any property. Instead, they have
alleged that their property is contaminated by PFOA as a result
of the defendants’ actions and that they have “suffered the need
for and the cost of remediation of their properties.” Compl.
(doc. no. 80) ¶ 54. At oral argument, plaintiff’s counsel
confirmed that their allegations of a need for mitigation and
remediation, rendered necessary by the contamination, constitute
the plaintiffs’ allegations of injury to their property beyond
mere invasion by PFOA. The court, drawing all reasonable
inferences in the plaintiffs’ favor, see Martino, 609 F.3d at 2,
construes these as allegations that the plaintiffs’ property has
been damaged in some manner that gives rise to some necessarily
Compl. (doc. no. 80) ¶¶ 55, 59, 62.
such illness, disease process or disease.”32
to dismiss the medical-monitoring plaintiffs’ claims,33 arguing
that the lack of any present physical injury to the plaintiffs - as compared to speculative, future injury -- precludes their
recovery in tort.
Some states allow recovery for the costs of such medical
The plaintiffs rely heavily, for example, on the
Supreme Court of Appeals of West Virginia’s decision that, even
absent present, physical injury, “a cause of action exists under
West Virginia law for the recovery of medical monitoring costs,
where it can be proven that such expenses are necessary and
reasonably certain to be incurred as a proximate result of a
defendant’s tortious conduct.”
Bower v. Westinghouse Elec.
Corp., 522 S.E.2d 424, 431 (W.Va. 1999).
To sustain such a
the plaintiff must prove that (1) he or she has,
relative to the general population, been significantly
Id. ¶ 55.
The plaintiffs pleading all claims on behalf of “Plaintiffs
and Class Members” generally, without distinguishing among or
between property-owning plaintiffs and plaintiffs seeking to
recover for medical monitoring costs. At oral argument,
plaintiffs’ counsel clarified that the plaintiffs assert all
claims on behalf of all plaintiffs. It is unclear to the court
whether plaintiffs who are not property-owners may recover for
injuries to their persons under theories of trespass and
nuisance. As the defendants have not moved on those grounds,
and as the parties have not briefed the issue, the court need
not resolve it here.
exposed; (2) to a proven hazardous substance;
(3) through the tortious conduct of the defendant;
(4) as a proximate result of the exposure, plaintiff
has suffered an increased risk of contracting a
serious latent disease; (5) the increased risk of
disease makes it reasonably necessary for the
plaintiff to undergo periodic diagnostic medical
examinations different from what would be prescribed
in the absence of the exposure; and (6) monitoring
procedures exist that make the early detection of a
Id. at 432-33.
Other states have likewise recognized a right to
similar recovery against exposure to toxic chemicals.
e.g., Exxon Mobil Corp. v. Albright, 71 A.3d 30, 80, (Md. 2013)
(“evidence of physical injury is not required to support costs
for medical surveillance”); Meyer ex rel. Coplin v. Fluor Corp.,
220 S.W.3d 712, 718 (Mo. 2007) (“recovering medical monitoring
damages does not require a threshold showing of present physical
injury”); Potter v. Firestone Tire & Rubber Co., 863 P.2d 795,
823 (Cal. 1993) (“a reasonably certain need for medical
monitoring is an item of damage for which compensation should be
allowed”); Ayers v. Jackson Twp., 525 A.2d 287, 312 (N.J. 1987)
(recognizing “the cost of medical surveillance [as] a
compensable item of damages” in toxic tort litigation).
also Baker v. Saint-Gobain Performance Plastics Corp., 232 F.
Supp. 3d 233, 252-53 (N.D.N.Y. 2017) (denying motion to dismiss
tort claims against Saint-Gobain seeking medical-monitoring
costs as damages); Benoit v. Saint-Gobain Performance Plastics
Corp., No. 116-CV-1057, 2017 WL 3316132, at *9-10 (N.D.N.Y. Aug.
2, 2017) (same).
In doing so, several courts have relied, at
least in part, on the conclusion of the Court of Appeals for the
District of Columbia that a plaintiff “ought to be able to
recover the cost for the various diagnostic examinations
proximately caused by [the defendant’s] negligent action.”
Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746
F.2d 816, 825 (D.C. Cir. 1984) (addressing claims for
compensation for medical evaluations of passengers following an
Still other states have rejected an expansion of negligence
doctrine to encompass potential, not present, physical injury.
See, e.g., Henry v. Dow Chem. Co., 701 N.W.2d 684, 691 (Mich.
2005) (economic losses incurred by paying for medical monitoring
“are wholly derivative of a possible, future injury rather than
an actual, present injury.
A financial ‘injury’ is simply not a
present physical injury, and thus not cognizable under our tort
system.” (emphasis original)); Lowe v. Philip Morris USA, Inc.,
183 P.3d 181, 186 (Or. 2008) (“the present economic harm that
defendants’ actions allegedly have caused -- the cost of medical
monitoring -- is not sufficient to give rise to a negligence
claim”); see also Metro-N. Commuter R. Co. v. Buckley, 521 U.S.
424, 444 (1997) (declining to recognize a “separate tort claim
for medical monitoring costs” for “asymptomatic plaintiffs”
under the Federal Employers’ Liability Act).
Neither New Hampshire’s legislature nor its Supreme Court
has spoken on the question.
Generally, in New Hampshire,
[t]he possibility that injury may result from an act
or omission is sufficient to give the quality of
negligence to the act or omission; but possibility is
insufficient to impose any liability or give rise to a
cause of action. . . . If, in a sense, there has been
negligence, there is no cause of action unless and
until there has been an injury.
White v. Schnoebelen, 91 N.H. 273, 274 (1941).
In the absence
of such a present, physical injury, the medical-monitoring
plaintiffs in this action seek to recover for an “economic
injury” -- that is, the cost of monitoring to determine whether
they have an injury.34
Such an allegation appears to conflate
“[a]n allegation of ‘injury,’” which is “an instance of
actionable harm,” with “a claim for ‘damages,’” that is, “a sum
of money awarded to one who has suffered an injury.”
Cote, 128 N.H. 231, 241–42 (1986).
The two are distinct.
In so doing, the plaintiffs effectively conceded that they do
not, at present have an injury.35
And, as discussed supra, it is
Opp. (doc. no. 84-1) at 17. Plaintiffs further characterize
their “injury” as “the present need for and cost of diagnostic
testing.” Id. at 18. At oral argument, plaintiffs’ counsel
further clarified that the injury giving rise to the medicalmonitoring plaintiffs’ claims constitutes their exposure to PFOA
plus the cost of the monitoring.
The court is not persuaded that the rule allowing a plaintiff
to “maintain an action against an insurer for negligent failure
to settle a case without prior payment of or proof of ability to
pay the excess judgment,” Dumas v. State Farm Mut. Auto. Ins.
Co., 111 N.H. 43, 46 (1971), translates into a viable claim for
unclear to the court whether New Hampshire law precludes a
negligence claim seeking to recover purely economic damages in
an action sounding purely in tort.
See supra Part III.A
(discussing economic loss doctrine).
The court is therefore considering whether to certify this
question to the New Hampshire Supreme Court, and at what
procedural posture such a certification would be most
See Old Republic Ins. Co. v. Stratford Ins. Co.,
777 F.3d 74, 86 (1st Cir. 2015) (the court is “permitted to
certify questions of law to the New Hampshire Supreme Court when
questions of New Hampshire law are determinative of the case,
and there is no controlling precedent from the New Hampshire
Supreme Court.”); N.H. Sup. Ct. R. 34.
The defendants’ motion
to dismiss this claim is, accordingly, denied without prejudice.
Trespass (Count 1)
The defendants further argue that the plaintiffs’ claim for
trespass must be dismissed because the plaintiffs have not
alleged that Saint-Gobain intentionally invaded their property.36
“[A] trespass [is] an intentional invasion of the property of
Case v. St. Mary’s Bank, 164 N.H. 649, 658 (2013)
damages where the defendant’s alleged breach of a duty may, but
has not yet, resulted in actual injury to the plaintiff. See
Opp. (doc. no. 84-1) at 19.
Defendant’s Mem. (doc. no. 82-1) at 17-18.
(quoting Moulton v. Groveton Papers Co., 112 N.H. 50, 54 (1972))
(alterations in original).
“[I]t is well settled in this
jurisdiction that an involuntary or accidental entry upon the
land of another is not a trespass.”
Paine v. Hampton Beach Imp.
Co., 98 N.H. 359, 363–64 (1953) (internal quotations and
That said, “[t]he intent with which tort
liability is concerned is not necessarily a hostile intent, or a
desire to do any harm.
Rather it is an intent to bring about a
result which will invade the interests of another in a way that
the law forbids.”
Thompson v. Forest, 136 N.H. 215, 219 (1992)
(quoting W.P. Keeton et al., Prosser and Keeton on the Law of
Torts § 8 (5th ed. 1984)).
If an actor knows that an injury is substantially
certain to result from his act and he nevertheless
completes the act, he is treated by the law as if he
in fact desired to produce the injury. To constitute
an intentional tort, the tortfeasor must have known
that his conduct was substantially certain to result
Id. at 219-20 (citing Vittum v. N.H. Ins. Co., 117 N.H. 1, 4
The plaintiffs here have alleged that Saint-Gobain used
PFOA in its manufacturing processes at its Merrimack facility,
knowing that those processes, as well as the structure of its
plant, “were sources of odors, visible emissions, particular
emissions and releases of toxic pollutants, including PFAS, that
would travel when released and contaminate the properties and
water supplies of Plaintiffs and of Class Members,” resulting in
The plaintiffs further allege that Saint-
Gobain knew that its processes could result in such
contamination because (1) it used similar manufacturing
processes in, among other places, Hoosick Falls, New York, which
resulted in PFOA contamination of drinking water in that
community, and (2) its predecessor, ChemFab, relocated its
processing plant to Merrimack from North Bennington, Vermont,
because Vermont implemented controls to reduce PFOA emissions.38
Despite this knowledge, plaintiffs allege, Saint-Gobain failed
to sufficiently control or abate PFOA emissions from the
The plaintiffs have thus alleged that Saint-Gobain knew
that its manufacturing processes emitted PFOA and that PFOA
could, as a result, infiltrate groundwater pulled by private
wells and municipal water systems.
The court therefore declines
to dismiss the plaintiffs’ claim, as the defendants would have
it do, on the grounds that the plaintiffs have also alleged that
the defendants did so negligently.40
Compl. (doc. no. 80) ¶ 14.
Id. ¶¶ 18-20, 21-26.
Id. ¶¶ 27-30, 33.
Defendants’ Mem. (doc. no. 82-1) at 17-18; Compl. (doc.
no. 80) ¶ 40.
Negligent failure to warn (Count 4)
In addition to their claims for general negligence, the
plaintiffs claim that the defendants negligently failed to warn
them “of the release of toxic PFAS and the likelihood that
groundwater and household water supplies were contaminated with
PFAS emitted from the Saint-Gobain Site, and that they were
being exposed to toxic PFAS.”41
Saint-Gobain moves to dismiss
this claim, arguing that New Hampshire law did not impose on it
a duty to warn the plaintiffs under these circumstances.
“In general, anyone who does an affirmative act is under a
duty to others to exercise the care of a reasonable [person] to
protect them against an unreasonable risk of harm to them
arising out of the act.”
Coan v. New Hampshire Dep't of Envtl.
Servs., 161 N.H. 1, 8 (2010) (quoting Restatement (Second) of
Torts § 302 comment a at 82 (1965)).
On the other hand, “[t]he
duties of one who merely omits to act are more restricted, and
in general are confined to situations where there is a special
relation between the actor and the other which gives rise to the
The defendants, arguing that the plaintiffs allege
an omission of an action (that is, failure to warn them of the
potential for contamination), contend that no claim for
negligent failure to warn can lie against them where the
Compl. (doc. no. 80) ¶¶ 94-96.
plaintiffs have pleaded the existence of no special relationship
giving rise to the duty to warn.42
The plaintiffs, arguing that
the defendants have acted affirmatively (that is, by emitting
PFOA), contend that defendants are subject to the duty of a
reasonable person to protect the plaintiffs against the
unreasonable risk of harm arising from that act by warning them
about the presence of PFOA in their household water.43
The defendants are correct, therefore, that an allegation
of omission, standing alone, likely would require a special
relationship between the parties for a failure to warn claim to
The plaintiffs have not alleged such a relationship.
nor have they alleged an omission in a vacuum -- they plead it
in the context of an affirmative action by Saint-Gobain.
plaintiffs have alleged that the Saint-Gobain committed an
affirmative act by releasing the PFOA, and only then that it
omitted to act by failing to warn the plaintiffs about potential
contamination resulting from those emissions.
The court is thus
inclined to view plaintiffs’ allegations as invoking the general
“duty to others to exercise the care of a reasonable [person] to
protect them against an unreasonable risk of harm to them
arising out of the act.”
Coan, 161 N.H. 8.
Defendants’ Mem. (doc. no. 82-1) at 18-19.
Opp. (doc. no. 84-1) at 21-23.
At the same time, that duty is the general duty that gives
rise to a claim of negligence.
As such, it is unclear to
the court that the plaintiffs may maintain a negligent failure
to warn claim based on that duty separate from their general
At this stage of the litigation, however,
where the latter may proceed for the reasons discussed supra
Part III.A-B, the court declines to dismiss the former.
Unjust enrichment (Count 5)
“Unjust enrichment is an equitable remedy that is available
when an individual receives ‘a benefit which would be
unconscionable for him to retain.’”
Axenics, Inc. v. Turner
Const. Co., 164 N.H. 659, 669 (2013) (quoting Clapp v. Goffstown
Sch. Dist., 159 N.H. 206, 210 (2009)).
“The party seeking
restitution must establish not only unjust enrichment, but that
the person sought to be charged had wrongfully secured a benefit
or passively received one which it would be unconscionable to
retain, and unjust enrichment generally does not form an
independent basis for a cause of action.”
Gen. Insulation Co.
v. Eckman Const., 159 N.H. 601, 611 (2010) (quoting 42 C.J.S.
Implied Contracts § 10, at 17 (2007)).
“Unjust enrichment is
not a boundless doctrine, but is, instead, narrower, more
predictable, and more objectively determined than the
implications of the words ‘unjust enrichment’.”
Clapp, 159 N.H.
at 210 (quotation omitted).
While it is said that a defendant is liable if ‘equity
and good conscience’ requires, this does not mean that
a moral duty meets the demands of equity. There must
be some specific legal principle or situation which
equity has established or recognized, to bring a case
within the scope of the doctrine.
Cohen v. Frank Developers, Inc., 118 N.H. 512, 518 (1978)
(quoting Am. Univ. v. Forbes, 88 N.H. 17, 19-20 (1936)).
The plaintiffs’ unjust enrichment claim is premised on the
savings that Saint-Gobain incurred -- that is, money not spent - rather than on a benefit bestowed -- that is, money or some
Such a savings “is also referred to as negative
unjust enrichment or recoverable profit.”
Allan Kanner, Unjust
Enrichment in Environmental Litigation, 20 J. Envtl. L. & Litig.
111, 146 (2005).
Some jurisdictions have recognized negative
unjust enrichment claims.
See Branch v. Mobil Oil Corp., 778 F.
Supp. 35, 36 (W.D. Okla. 1991) (“Oklahoma recognizes a claim for
negative unjust enrichment.”).
Others have recognized a version
of that claim, available only where “the plaintiff is unable to
establish actual damages because such a determination may be too
difficult” but “it would be unjust to allow Defendant to benefit
from disposal of waste on a plaintiff’s property without payment
Opp. (doc. no. 84-1) at 23-24.
of any kind.”
Little Hocking Water Ass’n, Inc. v. E.I. du Pont
Nemours & Co., 91 F. Supp. 3d 940, 986 (S.D. Ohio 2015).
Relying on these extra-jurisdictional cases, the plaintiffs
claim that Saint-Gobain has unjustly enriched itself through its
failures to “incur expenditures to limit or prevent the release
of toxic PFAS into the environment and the contamination to
Plaintiffs’ and Class Members’ properties and . . .
neighborhoods and household water supplies” and to incur the
costs to (1) “timely investigate the impacts” of that
contamination; (2) “timely mitigate” those impacts, and
(3) “remediate the contaminated soil, dust and groundwater.”45
By failing to incur these costs, the plaintiffs allege, SaintGobain “has received a benefit and it would be unconscionable
and contrary to equity for [it] to retain that benefit.”46
The plaintiffs have not cited, however, and the court has
not found, any case suggesting that New Hampshire recognizes
claims for negative unjust enrichment.
To the contrary, the
plaintiffs offer only one case recognizing an unjust enrichment
claim, and that in the context of a benefit conveyed by the
plaintiff to the defendant when the plaintiff repaired and
improved the defendant’s property.
Compl. (doc. no. 80) ¶ 98.
Id. ¶ 99.
Butterfield, 122 N.H. 120, 124 (1982).
No other case cited by
the plaintiffs addresses the possibility of such a claim.
Axenics, 164 N.H. at 670 (no unjust enrichment where express
contract governed scope of plaintiff’s work on defendant’s
property); Clapp, 159 N.H. at 211 (no unjust enrichment where
defendant retained funds it had otherwise voted to spend because
express contract governed employee's recovery); Univ. Sys. of
N.H. v. Nat’l Gypsum, No. 84-716, 1985 U.S. Dist. LEXIS 18277,
at *22 (D.N.H. July 2, 1985) (no unjust enrichment where
plaintiff voluntarily removed asbestos from its buildings);
Cohen, 118 N.H. at 518 (no unjust enrichment to defendant when
plaintiff forbore from exercising an option to purchase land to
develop competing shopping center); cf. Camden Nat’l Bank v.
Grestone Select Holdings, LLC, 2017 DNH 235, 10-12 (no unjust
enrichment in contract context).
Another court in this district has rejected a similar
argument, concluding, under Cohen, that restitution for unjust
enrichment is available only in the context of a contract
(express or implied) or a quasi-contract, and “that profits
gained by defendants as a result of” the defendants’ alleged
statutory violations do not “constitute the unjust receipt and
retention of a ‘benefit’ for which restitution is required.”
Pacamor Bearings, Inc. v. Minebea Co., 892 F. Supp. 347, 356-57
Because the plaintiffs’ claim for unjust enrichment is not
based in a “specific legal principle or situation which equity
has established or recognized” in New Hampshire so as “to bring
[this] case within the scope of the doctrine,” Cohen, 118 N.H.
at 518, the court grants the defendants’ motion to dismiss
Count 5 of the consolidated complaint.
Respondeat superior (Count 6)
Finally, the defendants move to dismiss the plaintiffs’
residual claim against Saint-Gobain based in respondeat
Because the court dismisses the plaintiffs’ claim
for unjust enrichment against both defendants, no claim for
respondeat superior liability may lie as against Saint-Gobain on
The court otherwise denies the defendants’ motion
to dismiss the plaintiffs’ claims based in respondeat superior.
As a final note, the plaintiffs’ request on the last page
of their opposition for leave to amend their pleadings48 runs
afoul of this court’s Local Rule 7.1(a)(1) (“Objections to
pending motions and affirmative motions for relief shall not be
combined in one filing.”).
Even if it did not, as the
Defendants’ Mem. (doc. no. 82-1) at 20.
Opp. (doc. no. 84-1) at 24,
defendants rightly observe, the court afforded the plaintiffs in
this consolidated action three separate opportunities to file a
The court assumes that the allegations
and claims asserted in their operative consolidated complaint
are the result of considered factual and legal assessments by
interim class counsel, and is thus disinclined to grant the
plaintiffs a fourth opportunity to adduce facts in support of
their consolidated claims.
The court is equally disinclined to elevate form over
substance, however, and therefore grants the plaintiffs’ motion
for leave to substitute certain paragraph references in their
consolidated complaint to correct what appear to the court to be
mere typographical errors.
Plaintiffs shall file an amended
complaint reflecting these revisions on or before December 13,
See Consolidation Order (doc. no. 48) (ordering plaintiffs to
file consolidated complaint); Brown Plaintiffs’ Master
Consolidated Complaint (doc. no. 60) (filed without consultation
with Dowling plaintiffs’ counsel); Order of March 6, 2017
(granting extension of time to file consolidated complaint);
Dowling Plaintiffs’ Master Consolidated Complaint (doc. no. 70)
(filed without consultation with Brown plaintiffs’ counsel);
Order of March 30, 2017 (granting motion to stay filing of
consolidated complaint until appointment of interim class
counsel); Order of May 11, 2017 (appointing interim counsel and
ordering consolidated complaint to be filed).
For the reasons discussed above, the court GRANTS-IN-PART
and DENIES-IN-PART the defendants’ motion to dismiss the
Specifically, it grants the defendants’ motion to
dismiss the plaintiffs’ unjust enrichment claim (Count 5), and
denies it as to the plaintiffs’ remaining claims.
Finally, the court GRANTS the plaintiffs’ motion for leave
Joseph N. Laplante
United States District Judge
Dated: December 6, 2017
Kevin Scott Hannon, Esq.
Paul M. DeCarolis, Esq.
Anthony Sculimbrene, Esq.
Hunter J. Shkolnik, Esq.
Kirk C. Simoneau, Esq.
Lawrence A. Vogelman, Esq.
Louise R. Caro, Esq.
Paul J. Napoli, Esq.
Finis E. Williams, III, Esq.
Bruce W. Felmly, Esq.
Douglas E. Fleming, III, Esq.
Lincoln D. Wilson, Esq.
Mark Cheffo, Esq.
Patrick Curran, Esq.
Paul A. LaFata, Esq.
Sheila L. Birnbaum, Esq.
Nicholas F. Casolaro, Esq.
Document no. 82.
Document no. 88.
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