The United States Court of Appeals for the First Circuit affirmed the District Court’s entry of summary judgment on all remaining claims in an action filed by the Town of Westport against Monsanto Company, Solutia, Inc., and Pharmacia.  Town of Westport v. Monsanto Company, Case No. 17-1461 (December 8, 2017).  In the suit, Westport alleged Monsanto and its related corporations, Solutia, Inc. and Pharmacia, were liable for property damage caused by PCB-laden caulk installed in a Massachusetts middle school in the 1960s. 

Westport alleged PCBs used in the caulk used when the school was constructed in 1969 caused the Town to incur remediation costs at the school property 40 years later when Westport renovated the building’s windows and roof.  Westport brought claims under Massachusetts’ version of CERCLA and for public nuisance, private nuisance, trespass, breach of implied warranty of merchantability, defective design, negligence and failure to warn.  The District Court previously dismissed all of Westport’s claims except the claims for defective design, negligence and failure to warn and then granted summary judgment on those claims. 

The First Circuit upheld the District Court’s ruling, finding the “risk that PCB-containing caulk would cause adverse health effects could not have been ‘reasonably foreseeable’ in 1969 given that the existence of such a risk remains unverified by scientific studies today. … In fact, the evidence unequivocally supports the conclusion that the risk PCBs would volatilize from caulk at harmful levels was not reasonably foreseeable in 1969.” 

The Court stated the only possible exception is where a manufacturer intentionally targets children, and no such allegations were made in this case.  The Court’s ruling is consistent with a similar case brought against the same defendants in 2016 by the town of Lexington, Massachusetts.