LAFFERTY et al v. SHERWIN WILLIAMS COMPANY, INC et al
Filing
53
OPINION. Signed by Judge Robert B. Kugler on 8/21/2018. (dmr)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
BRAD LAFFERTY, et al.,
Plaintiff(s),
v.
THE SHERWIN-WILLIAMS COMPANY, et
al.,
Defendant(s).
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Civil No. 1:17-06321-RBK/AMD
OPINION
KUGLER, United States District Judge:
This matter arises from defendant the Sherwin-Williams Company’s (“Defendant”)
Motion to Dismiss (Doc. No. 33) Plaintiffs’ Amended Complaint (Doc. No. 32). For the reasons
set forth below, Defendant’s motion is GRANTED, and Plaintiffs’ Amended Complaint is hereby
DISMISSED.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
This case stems from Defendant’s development, manufacturing, and distribution of paint,
varnish, coatings, and related products and the hazardous substances that those activities produced
and subsequently released into the surrounding area.
On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must “accept
all factual allegations as true and construe the complaint in the light most favorable to the
Plaintiff.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Accordingly, for
purposes of this motion, the Court adopts and accepts as true the facts as pled in the Complaint.
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1
Defendant2 and its predecessor manufactured these products at a plant in Gibbsboro, N.J.—
a community of around 2,200 people—from 1851 to 1978. (Am. Compl. at 7; Def. MTD at 1.)
Defendant conducted its operations on three distinct areas of land in Gibbsboro. (Am. Compl. at
12–14.) All three (collectively, the “Site”) have been designated as Superfund Sites by the United
States Environmental Protection Agency (“EPA”). (Id. at 12.) The EPA is now overseeing
Defendant’s remediation efforts of the Site. (Am. Compl. at 33, 47.)
As part of its operations at the Site, Defendant used hazardous substances. (Id. at 7–9.)
These included lead, arsenic, pentachlorophenol, aluminum, manganese, iron, pesticides,
polycyclic aromatic hydrocarbons, polychlorinated biphenyls, cadmium, benzo-anthracene,
benzo-pyrene, pyrene, copper, mercury, zinc, vanadium, and benzene.3 (Id. at 8.) Defendant’s use,
storage, and disposal of these products released toxic chemicals and hazardous substances into the
surrounding environment, and these substances have since migrated into surrounding areas. (Id. at
11–12.) Since at least 1910, Defendant has known or should have known about the danger
presented by these substances, especially the dangers presented by lead.4 (Id. at 10.)
Plaintiffs are a group of New Jersey residents from Gibbsboro, Voorhees, Somerdale, Atco,
and Blackwood, some of whom suffer from terrible cancers and other illnesses that they attribute
to Defendant’s actions. (Am. Compl. at 3–7.) Plaintiffs allege that Defendant knew that the areas
surrounding the Site were contaminated and extremely dangerous. (Id. at 9–12.) It is alleged that
hazardous substances migrated into surrounding neighborhoods and residential areas, where they
2
An Ohio Corporation whose principal place of business is located at 101 W. Prospect Ave.,
Cleveland, OH 44115. (Am. Compl. at 7.)
3
These substances’ hazardous properties have been well-documented. (Id. at 9-11.)
4
Plaintiffs cite numerous acknowledgments, journal articles, internal letters, and more suggesting
Defendant knew or should have known about the dangers of these substances. (Id. at 10-12.)
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were then inhaled, ingested, or otherwise came into contact with people in the community. This
contamination is an ongoing threat. (Am. Compl. at 12–23.)
Plaintiffs rely on “exposure pathways” to explain how health hazards exist in the
community and why the contamination is still dangerous. (Id. at 18.) Exposure pathways measure
how these dangerous substances meet humans, starting with the release of a contaminant in the
environment and ending at its interface with the human body. (Id.) Potential exposure pathways in
this case include: ingestion of contaminated soil and sediment; ingestion of surface and
groundwater; inhalation of indoor air and vapor; and ingestion of fish, game, and plants from
infected bodies of water. (Id. at 18–19.)
In short, Plaintiffs maintain that Defendant has acknowledged to the EPA that there is
extensive contamination in the groundwater, surface water, soil, sediment, vapor samples, and
more in surrounding areas. (Id. at 15.) Similar studies conducted by the EPA and other government
agencies have reached similar conclusions. (Am. Compl. at 16.) Defendant, however, “concealed
the extent of the contamination and has failed to disclose the hazards to the community.” (Id. at
21.) Defendant has failed to adequately investigate and remediate the contamination, despite its
awareness of the problem, and told residents that “no further action [was] required” at residents’
properties. (Id.) Defendant also repeatedly diminished and underreported the level of
contamination present at the Sites.5 (Id. at 33–35.)
Plaintiffs’ alleged damages include elevated levels of toxic chemicals and carcinogens in
the environment, which have resulted in physical damage and an increased risk of disease as well
5
Plaintiffs spend nearly seven pages of their Amended Complaint arguing that Defendants should
not be able to assert a statute of limitations defense based on continuing violations, the discovery
rule, fraudulent concealment, and estoppel. (Id. at 29–36.) As will become clear below, this point
is functionally moot.
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as the diminution in value of their properties. (Id. at 24–25.) They bring their claims in their own
names and on behalf of a proposed class of all persons similarly situated (the “Class”), pursuant to
Rule 23 of the Federal Rules of Civil Procedure. The Class consists of all persons who have owned
or rented property, resided, or worked within the Class Area at any time since January 1, 1930.
(Id. at 25.) The Class Area refers to the geographical area containing all homes and other structures
connected to or within the fate and transport of one or more of Defendant’s Contaminants. (Am.
Compl. at 26.) Plaintiffs also propose three Subclasses:
a. Subclass 1: All persons within the Class who have no known medical diagnosis
of a contaminant-related bodily injury, including cancer.
b. Subclass 2: All persons within the Class who have been diagnosed with a
contaminant-related bodily injury, including cancer.
c. Subclass 3: All persons within the Class who own or have owned property.
(Id. at 25–26.)
Plaintiffs bring ten counts against Defendant: Negligence (Count I); Private Nuisance
(Count II); Trespass (Count III); Strict Liability (Count IV); Absolute Liability (Count V); Battery
(Count VI); Fraud and Fraudulent Concealment (Count VII); Equitable Fraud (Count VIII);
Medical Monitoring (Count IX); and Willful and Wanton Misconduct (Count X). (Id. at 36–48.)
This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) and (2); Plaintiffs and
Defendant are citizens of different states and the amount in controversy exceeds $75,000. This is
the proper forum pursuant to 28 U.S.C. § 1391 because a substantial portion of the alleged events,
omissions, and damages giving rise to the claims occurred in this District.
II. LEGAL STANDARD
Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to
state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts accept
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all factual allegations as true, construe the complaint in the light most favorable to the plaintiff,
and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v.
County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a complaint survives a
motion to dismiss if it contains sufficient factual matter, accepted as true, to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
To make this determination, a court conducts a three-part analysis. Santiago v. Warminster
Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, The court must “tak[e] note of the elements a
plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Second, the court should
identify allegations that, “because they are no more than conclusions, are not entitled to the
assumption of truth.” Id. at 131 (quoting Iqbal, 556 U.S. at 680). Finally, “where there are
well-pleaded factual allegations, a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement for relief.” Id. (quoting Iqbal, 556 U.S. at 680). This
plausibility determination is a “context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Iqbal, 556 U.S. at 679. A complaint cannot survive
where a court can only infer that a claim is merely possible rather than plausible. Id.
Rule 23 Class Certification
In order to satisfy the requirements for class certification under Rule 23, a plaintiff must
satisfy the four necessary elements contained in Rule 23(a) and the requirements of one of the
three subsections in Rule 23(b). Bell v. Lockheed Martin Corp., No. 08-6292, 2011 WL 6256978,
at *2 (D.N.J. Dec. 14, 2011) (citing In re Constar Int’l Inc. Sec. Litig., 585 F.3d 774, 776 (3d Cir.
2009)).
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Rule 23(a) provides that class certification is proper if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims
or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of
the class.
Fed. R. Civ. P. 23(a).
As to Subclass 1 Members’ claims, Plaintiffs must establish that Defendant “acted or
refused to act on grounds that apply generally to the class” so that injunctive or declaratory relief
is appropriate respecting the class as a whole. Fed. R. Civ. P. 23(b)(2). Additionally, as to the
claims of the members of Subclass 2 and 3, Plaintiffs must show that “common” “questions of law
or fact” “predominate over any” individual questions, and that “a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
III. DISCUSSION
a. Federal Law Bars Any Claims Premised Upon Improper Remediation.
Plaintiffs do not dispute that Defendant is complying with and implementing EPAmandated remedies. After public notice and comment, the EPA issued a decision on Defendant’s
remediation plan. (Am. Compl. at 31.) It is undisputed that Defendant is implementing the EPAdirected remedy. (Def. MTD at 13; Def. Rep. at 3.)
The Comprehensive Environmental Response, Compensation, and Liability Act
(“CERCLA”) § 113(h), 42 U.S.C. § 9613(h) states, “[n]o Federal court shall have jurisdiction . . .
to review any challenges to removal or remedial action selected” by the EPA. 42 U.S.C. § 9613(h);
Clinton Cnty. Comm’rs v. EPA, 116 F.3d 1018, 1023 (3d Cir. 1997) (§ 113(h) precludes judicial
review of any EPA-selected remedial action). If a lawsuit calls into question the EPA’s remedial
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response plan, it “constitutes a ‘challenge’ to the cleanup.” New Mexico v. General Elec. Co., 467
F.3d 1223 (10th Cir. 2006).
Similarly, common law suits inconsistent with EPA-ordered remedial actions are
preempted. Middlesex Cnty. Health Dep’t v. Consol. Rail Corp., 2009 WL 62444, at *2 (D.N.J.
Jan. 9, 2009) (dismissing air emissions claims); Farina v. Nokia Inc., 625 F.3d 97, 125–26 (3d Cir.
2010) (dismissing a class action where the plaintiffs’ claims were necessarily in conflict with
federal regulation). New Mexico is illustrative. 467 F.3d at 1227. In that case, the defendant was
performing EPA-mandated remedial activities when a plaintiff sued for damages under state
common law. Id. Because the lawsuit “call[ed] into question the EPA’s remedial response plan” it
constituted a challenge to the cleanup. Id. at 1249. The damages the plaintiff sought, much like the
potential damages Plaintiffs seek in our case, would place the defendant “in the unenviable position
of being held liable for monetary damages because they are complying with an EPA-ordered
remedy which [the defendant has] no power to alter without prior EPA approval.” Id. at 1249–50.
Plaintiffs have conceded these arguments, as their Opposition does not mention or dispute
them. “The failure to respond to a substantive argument to dismiss a count, when a party otherwise
files opposition, results in a waiver of that count.” Griglak v. CTX Mortg. Co., LLC, 2010 WL
1424023, at *3 (D.N.J. Apr. 8, 2010) (granting a motion to dismiss).
To the extent that Plaintiffs’ claims (Counts I–X) rely on allegations that (1) Defendant
failed to diligently and adequately investigate and remediate any hazardous substances, and (2)
Defendant’s public information related to the EPA-directed investigation and remediation was
false or deficient, they cannot proceed. See New Mexico, 467 F.3d at 1244–48.
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b. Plaintiffs’ Medical Monitoring Claims Fail to State a Plausible Claim Upon Which
Relief Can Be Granted.
Damages for medical monitoring are appropriate when a plaintiff does not exhibit a
physical injury but nevertheless requires medical testing as a proximate result of a defendant’s
negligent conduct. In re Paulsboro Derailment Cases, 2015 WL 5028301, at *3 (D.N.J. Aug. 18,
2015) (citing Ayers v. Twp. of Jackson, 106 N.J. 557, 600 (1987)). Medical-surveillance damages
may be awarded only if a plaintiff reasonably shows that medical surveillance is required because
the exposure caused a distinctive increased risk of future injury. Id. (citing Theer v. Philip Carey
Co., 133 N.J. 610, 627–28 (1993)). Sweeping allegations of “serious latent disease” do not,
however, properly put a defendant on notice of what the claim is or the grounds on which it rests.
Slemmer v. McGlaughlin Spray Foam Insulation, Inc., 2013 WL 5655480, at *3 (E.D. Pa. Oct. 17,
2013) (citing Twombly, 550 U.S. at 545).
Plaintiffs cite numerous potential health hazards presented by lead and arsenic. (Pl. Opp.
at 14; Am. Compl. at 19–20.) They also allege that the contaminants at the site have migrated via
wind dispersion, surface and groundwater migration, and other environmental means into and
around Plaintiffs’ communities and homes, posing a public health hazard to all. (Pl. Opp. at 16.)
But they do not identify specific substances to which Plaintiffs were actually exposed, at what
levels Plaintiffs were actually exposed, which diseases Plaintiffs are at an increased risk of
developing, what the potential risks are, what types of medical monitoring program are required,6
how any proposed programs would operate, how those programs would detect the diseases that
Though Plaintiffs do request “baseline exams, diagnostic exams, and pharmaceutical
interventions.” (Am. Compl. at 46.)
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Plaintiffs do not actually specifically allege, or how any medical monitoring programs would
actually protect them.7
Plaintiffs try to distinguish this case from both Slemmer, 2013 WL 5655480, and Rowe v.
E.I. du Pont de Nemours & Co., 2008 WL 5412912 (D.N.J. Dec. 23, 2008). This Court finds these
attempted distinctions unconvincing. In Slemmer, the plaintiffs vaguely alleged that they were at
an increased risk of developing lung damage. In this case, Plaintiffs vaguely allege increased health
risks from potential lead, arsenic, benzene, and benzo(a)pyrene exposures. (Pl. Opp. at 16.)
Similarly, the issues from Rowe are present here as well. As discussed in the preceding paragraph,
Plaintiffs have simply not properly alleged that on a class-wide basis they have suffered an
increased risk of disease.
c. Plaintiffs Fail Rule 23(b) Predominance Requirements.
Despite Plaintiffs’ citations from other circuits stating otherwise, within the Third Circuit
Rule 12 can be used to dismiss class allegations that fail to satisfy Fed. R. Civ. P. 12(b)(6). (See
Pl. Opp.); Nicholas v. CMRE Fin. Servs., Inc., 2009 WL 1652275, at *4 (D.N.J. June 11, 2009)
(“After Twombly, courts in [the Third Circuit] have found that class allegations must also comply
with Rule 8(a) in order to proceed to class discovery”); Slemmer, 2013 WL 5655480, at *3–4 (E.D.
Pa. Oct. 17, 2013) (dismissing classes at the Fed. R. Civ. P. 12(b)(6) stage).
To meet the Rule 23 commonality requirement, class members’ claims must “depend
upon a common contention” that is “capable of classwide resolution—which means that
determination of its truth or falsity will resolve an issue that is central to the validity of each one
of the claims in one stroke.” King Drug Company of Florence, Inc. v. Cephalon, Inc., 309 F.R.D.
Outside of “mak[ing] possible the early detection of the diseases” and “prevent[ing] or
mitigate[ing] the injuries.” (Id.)
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195, 207 (E.D. Pa. 2015) (quoting Wal-Mart Stores v. Dukes, 131 S. Ct. 2541, 2551 (2011)).
Commonality requires the plaintiff to demonstrate that the class members have suffered the same
injury. Wal-Mart, 131 S. Ct. at 2551 (“Dissimilarities within the proposed class are what have
the potential to impede the generation of common answers”). The requirement may be satisfied
by a single common issue. Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994).
Plaintiffs must also allege sufficient Rule 23(b) predominance, though, which is more
demanding than commonality and requires more than a common claim. Amchen Prods., Inc. v.
Windsor, 521 U.S. 591, 623-24 (1997); Newton v. Merrill Lynch, Pierce, Fenner *Smith, Inc., 259
F.3d 154, 188 (3d Cir. 2001).
Significant individual issues pervade this entire action. Although Plaintiffs argue that
individual damages calculations do not prevent Rule 23(b)(3) certification, (Pl. Opp. at 9–10, 13,
17), there is a big difference between a damages calculation versus establishing liability. See In re
Paulsboro Derailment Cases, 2014 WL 4162790, at *12 (D.N.J. Aug. 20, 2014). Where proof is
essential—as it is here—the need for individualized proof can defeat predominance. Id. (quoting
Newton, 259 F.3d at 188).
In a case like this one, proof of both causation and damages are essential to liability. Put
simply, individual fact finding is essential to determine whether one of these hazardous substances
impacted someone. Proposed class members live and work miles apart. Their potential exposures,
if any, are likely drastically different. Conducting such causative inquiries on a class-wide basis
would be problematic and wildly inaccurate—individualized proceedings are necessary. For
example, proposed class members who live and own property in Gibbsboro but have never been
exposed to hazardous substances as a result of Defendant’s actions would not be class members.
But the only way to determine whether they have been exposed is an individual inquiry. We cannot
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do this for thousands of people and call it a class-action. Similarly, Plaintiffs cannot demonstrate
a class-wide method of proving damages. Id. (citing Bright v. Asset Acceptance, LLC, 292 F.R.D.
190, 202-03 (D.N.J. 2013) (noting that the Supreme Court’s recent opinion in [Comcast] is clear
that a plaintiff seeking class certification must present evidence of a reliable methodology for
calculating damages on a class-wide basis”). Plaintiffs have not even attempted to do so in this
case. Individual issues of exposure, causation, and damages preclude class certification.
d. The Definition Of Class Area Is Unascertainable.
Plaintiffs define the Class Area as the “geographical area containing all homes and other
structures connected to or within the fate and transport of one or more of Defendant’s
Contaminants.” (Am. Compl. at 26.)
This amounts to a class that is wholly unascertainable without individualized investigation
and creates an impermissible “fail-safe class where the question of whether a person qualifies as a
member depends on whether the person has a valid claim.” Martinez v. TD Bank USA, N.A., 2017
WL 2829601, at *11 (D.N.J. June 30, 2017) (granting a motion to strike class allegations because
the class was not properly ascertainable). Plaintiffs themselves do not allege that any of their
individual properties contain or contained hazardous substances. (See Am. Compl.) The class itself
is rendered “impossible to identify without extensive and invidualized fact-finding or mini-trials.”
There also is no “reliable, administratively feasible alternative” way to determine who is properly
a member of the proposed class. Carrera v. Bayer Corp., 727 F.3d 300, 303–04 (3d Cir. 2013)
(citing Marcus v. BMW of North America, LLC, 687 F.3d 583, 593 (3d Cir. 2012)). The only way
to make such a determination would be individual fact-finding or trials that measure the level of
contamination that someone was exposed to or that someone’s property contained.8
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Plaintiffs also leave their preferred term, “fate and transport,” undefined. (Am. Compl. at 26.)
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Plaintiffs are essentially asking this Court to greenlight a Class Area defined as anywhere
there is contamination. This Court declines to do so.
IV. CONCLUSION
For the reasons discussed above, Plaintiffs’ Amended Complaint is hereby DISMISSED.
An Order follows.
Dated: _8/21/2018_____
/s Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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