Honeywell Water Pollution Class Claims Proceed

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Honeywell will have to face class claims for negligence, nuisance, trespass and medical monitoring in a New York water contamination case, the Northern District of New York ruled Feb. 6 ( Baker v. Saint-Gobain Performance Plastics Corp. , 2017 BL 34914, N.D.N.Y., No. 16-cv-00917, 2/6/17 ).

The court declined to dismiss state-law tort claims stemming from perflurooctanoic acid (PFOA) that leached into groundwater from a factory in Hoosick Falls, N.Y. The plant, formerly owned by Honeywell International Inc., currently is owned by Saint-Gobain Performance Plastics Corp.

The ruling came in closely-watched litigation over pervasive PFOA contamination in the town’s water supply, and the U.S. District Court for the Northern District of New York wrestled with unsettled issues of New York tort law in its decision. It authorized an immediate appeal to the U.S. Court of Appeals for the Second Circuit for “early resolution” of “complex and novel” legal issues in the litigation.

“This is a wonderful decision for the people of Hoosick Falls, who may now proceed with their lawsuit,” Robin Greenwald, of Weitz & Luxenberg in New York City told Bloomberg BNA Feb. 7. “We prevailed on virtually all of their claims.”

Greenwald is head of the Weitz & Luxenberg’s Environmental and Consumer Protection Unit.

Honeywell spokeswoman Victoria Streitfeld told Bloomberg BNA Feb. 7 that “Honeywell remains focused on conducting the environmental investigations and necessary remediation under the state’s supervision and direction.” She said in an e-mail that the company is reviewing the decision.

Saint-Gobain also said it was reviewing its options.

“The decision does not reflect the merits of the case and instead allows the case to move forward to the discovery phase,” Dina Pokedoff, a spokeswoman for Saint-Gobain told Bloomberg BNA Feb. 7. “The court also invited the parties to appeal the decision, and we are presently considering our appellate options,” Pokedoff said in an e-mail.

PFOA in Drinking Water

PFOA is a water, oil and grease repellent used in carpeting, fabric and other products. Residents contend elevated PFOA levels in the municipal water system and private wells came from the factory, causing cancer risks and diminished property values.

Honeywell and Saint-Gobain argued no plaintiff had standing to sue because groundwater “is a public resource held by the State for its benefit.”

The court, however, said society “has a reasonable expectation that manufacturers avoid contaminating the surrounding environment,” including an area’s water supply.

Private water well owners also have a possessory interest in wells harmed by PFOA trespasses, and private nuisance claims may proceed because of the “special loss” well owners suffer from the installation of monitoring equipment, the court said.

It did, however, dismiss private nuisance claims brought by municipal water users. Those plaintiffs presented public, rather than private, nuisance considerations, the court said.

Medical Monitoring Claims

The companies also argued New York law barred medical monitoring claims brought by Baker and other plaintiffs with elevated PFOA levels, at least where there is no existing diagnosis.

A plaintiff “may show an injury sufficient to seek medical monitoring through the accumulation of a toxic substance within her body,” the court said.

“The entire point of medical monitoring is to provide testing that would detect a patient’s disease before she manifests an obvious symptomatic illness, thus allowing treatment that carries a better chance of success,” the court said.

However, state law wasn’t completely settled on this and other issues raised by the companies, the court said. There are “several complex and novel issues of New York law as to which the existing case law is significantly muddled,” and they warranted an immediate appeal of the order to the Second Circuit.

U.S. District Judge Lawrence E. Kahn wrote the opinion.

The law offices of Weitz & Luxenberg represented the plaintiffs.

Arnold & Porter, as well as Allen & Desnoyers represented Honeywell.

Quinn Emanuel Urquhart & Sullivan, as well as Hinckley Allen represented Saint-Gobain.

For More Information

The opinion is available at http://src.bna.com/l4D.

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