In March 2019, we posted about the strategy behind the Long Island water districts’ 1,4-dioxane litigations against major manufacturers—and then in October 2019, we followed that post with another report on the increasing number of those suits , which became the subject of a 12(b)(6) motion to dismiss. These suits filed by public water suppliers seek to recover costs against major manufacturers and promoters of the chemical for the design, construction, installation, operation, and maintenance of water treatment facilities and equipment required to remove the 1,4-dioxane from drinking water wells. Now we know that these litigations will live to see many more days. Just last week, the U.S. District Court for the Eastern District of New York denied the defendants’ dispositive motion, allowing two dozen cases to proceed.
For background, 1,4-dioxane is a synthetic industrial chemical that is completely miscible (mixes in all proportions) in water. The EPA considers 1,4-dioxane “a likely human carcinogen” and characterizes it as “highly mobile” and not “readily biodegradable.” 1,4-dioxane is a likely contaminant at many sites contaminated with certain chlorinated solvents (particularly 1,1,1-trichloroethane or TCA) because of its widespread use as a stabilizer for those chemicals. The EPA indicates that 1,4-dioxane is used in “paint strippers, dyes, greases, varnishes, and waxes” and is also found as an impurity in anti-freeze and aircraft deicing fluid, and as a byproduct in consumer products like shampoos, deodorants, cleaning detergents, and cosmetics. Although the New York State Dep’t of Health regulates 1,4-dioxane as an “unspecified organic contaminant” under a maximum contaminant level of 50ppb, none of the plaintiff water districts’ wells have exceeded that level.
As previously reported, the lawsuits assert five causes of action: Strict products liability for defective design of products containing 1,4-dioxane; Strict products liability for failure to warn against “latent dangers resulting from foreseeable uses of the products”; Negligence; Public nuisance; and Trespass. The water districts seek damages “to recover the substantial costs necessary to protect the public and restore its damaged drinking water supply wells…” and as indicated, reimbursement “for the costs of designing, constructing, installing, operating, and maintaining the treatment facilities and equipment required to remove the 1,4-dioxane from its drinking water wells…”
In support of the motion to dismiss, defendants argued that the plaintiff water districts did not and could not sufficiently allege substantial factor causation because the plaintiffs had conceded that “it is impossible” to identify the source of the alleged contamination—that the chemical is “fungible” and has no distinctive characteristics to identify a particular company. The defendants took issue with the plaintiffs’ failure to name any of the actual polluters as defendants. Further, the defendants argued that the pleadings do not identify the contaminated wells in each of the water districts, do not identify the levels of contamination, and as mentioned, do not contain allegations on which parties released the 1,4 dioxane into the wells. However, at least at this motion to dismiss stage, the court sided with the plaintiff water districts.
In weighing the plaintiffs’ allegations against the substantial factor causation standard (i.e., whether the complained of act or omission is a substantial factor in bringing about the injury), the court rejected the defendants fungibility argument: “defendants provide no authority for the proposition that the fungibility of chemical molecules makes it impossible to prove, let alone plead, causation in a groundwater case alleging manufacturer liability.” The court noted that disagreements here are ultimately for a summary judgment motion or a decision by a jury: “whether plaintiffs ultimately will be able to prove that defendants’ products are in their wells…requires an evaluation of the evidence and can be resolved only on summary judgment or at trial.”
Further, the court was unconvinced by the defendants’ argument on the plaintiffs’ failure to name the actual polluters in the lawsuits. The court explained that “if plaintiffs can prove that each defendant’s actions were a substantial factor in bringing about the harm, that non-parties may have contributed to the harm does not necessarily undermine the defendants’ liability.” Ultimately, the court found that the water districts’ allegations sufficiently allege that the “defendants knew, or should have known, that dioxane contamination was a foreseeable consequence of the intended use of their products.”
Essentially, the curt follows the principle from the MTBE litigation, which says substantial factor causation can be proven in a groundwater contamination case involving the manufacturer of a fungible contaminant.
See In re Methyl Tertiary Butyl Ether Prod. Liab. Litig., 725 F.3d 65, 116 (2d Cir. 2013).