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Last Product Liability Claims Dismissed in Massachusetts PCB Suit

In a win for manufacturers of products containing PCBs, a Massachusetts federal court dismissed the last few PCB-related product liability claims in a sprawling case brought by a local school because injuries related to caulking made with PCB-containing plasticizers were not reasonably foreseeable when the caulk was first used.  See Town of Westport v. Monsanto Co., No. 14-12041 (D. Mass. Apr. 7, 2017).

Until 1977, Defendant Pharmacia produced plasticizers containing polychlorinated biphenyls, or PCBs, that were used in certain kinds of caulk.   A middle school in the Town of Westport was constructed in 1970, and PCB-containing caulk was used in its construction. The PCBs were detected in 2011 and the school was remediated.  The town brought suit, and Pharmacia successfully moved to dismiss claims alleging public nuisance, private nuisance, trespass, and violation of the Massachusetts Oil and Hazardous Material Release Prevention and Response Act.  But Plaintiff’s claims for negligence, defective design, and failure to warn survived. 

To support defective design claims, Massachusetts law required the plaintiff to show both that a safer alternative design existed for the PCB-containing plasticizers, and that the injury alleged was reasonably foreseeable when the caulk was used in the school’s construction.  Finding that the plaintiff had not proved that a safer alternative existed, the court noted that “Massachusetts law does not allow for the categorical imposition of liability on an entire class of products[,]” so the plaintiff could not base its claim on the conclusion that PCB plasticizers “should never have existed in the first place.” Moreover, the court found that the risks posed by PCBs in the caulk were not reasonably foreseeable at the time they were used in the school’s construction.  The plaintiff’s own expert admitted to not knowing of any scientific studies “demonstrating that PCBs volatizing from building materials caused adverse health effects.”  The court concluded that it could not find that the risk was foreseeable in 1970 “when it is not clear today that the PCBs contained in caulks pose a danger to human health.”

The plaintiff’s failure-to-warn claims failed for the same reason, among others: Under Massachusetts’s bulk supplier doctrine, Pharmacia was not obligated to warn the school itself because it “reasonably relied upon [the caulk manufacturers] to pass on the necessary warnings to the end users of PCB-containing plasticizers.” Similarly, the plaintiff failed to show how Pharmacia could have identified the school as an end user of the plasticizer. The court rejected the argument that Pharmacia could have used public media to publish a general warning “for all conceivable end users of products containing [PCB] plasticizers.”

Finally, Pharmacia defeated the plaintiff’s last remaining claim – negligence – when the court dismissed the defective design claims, which were the sole basis for the negligence claim.