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.
