Lawsuits involving water contamination have been trending over the past couple years throughout the United States. We’ve seen a shift in the plaintiff’s bar’s focus from pursuing point sources to utilizing traditional product liability theories to support allegations of contamination against manufacturer defendants when the opportunity presents itself. The blue print’s simple – pursue deep pocketed manufacturers where insurance is often available.
The product liability lawsuits against manufacturers of aqueous film forming foam (AFFF) – a firefighting foam utilized at airports and military bases throughout the nation – are a good example of the blueprint at work. We report here on a recent development involving these types of suits.
Last week, a federal judge in the Eastern District of Pennsylvania allowed plaintiffs Larry and Jacquelyn Menkes to move forward with their case, but with some important limitations in their action against various manufacturers of AFFF following the defendants’ motions to dismiss.
The plaintiffs allege that Larry Menkes developed bladder cancer in 2011 as a result of exposure to per- and polyfluoroalkyl substances (PFAS) in the public water supply of Warminster, Bucks County, Pennsylvania.
PFAS is a group of man-made chemicals that includes PFOA and PFOS. The plaintiffs further claim that the defendants sold AAAF – which contains the chemical PFAS – to the United States Navy for use at several of its bases in Pennsylvania and that those chemicals found their way into the community ground water, harming Mr. Menkes. The Menkes suit is one of several cases filed in federal court in Pennsylvania arising from the use of AFFF at these military installations.
PFAS has an extremely long half-life due to its strong chemical bonds, and therefore degrades slowly in the environment. PFAS has been used extensively in a variety of consumer products, including AFFF, for more than 60 years. In 2016, the EPA set its Health Advisory for Lifetime Exposure to PFOA and PFOS at 70 parts per trillion combined (PPT). About five years ago, wells in Warminster Township, PA demonstrated PFOS levels ranging from 40-1090 PPT, and PFOA levels ranging from 20-890 PPT, resulting in the closure of several of those water sources.
Turning back to the Menkes’ suit. At the pleading stage, the court determined that the plaintiffs’ allegations were sufficient to support the existence of a duty and that the defendants’ alleged breach of that duty was the proximate cause of Mr. Menkes injuries. Notably however, the court determined that the plaintiffs could not state a claim for strict products liability, and granted the defendants’ motion to dismiss on these claims without leave to amend. In its analysis, the court noted that the plaintiffs were bystanders, and not users or consumers of AFFF. The court determined that no PA state or federal court had allowed a strict products liability claim to be brought by bystanders who were not in direct proximity to the defective product. Given that the Menkes were not present on the military bases where AFFF was used, and because they were not users or consumers of AFFF, the court determined that those claims for strict products liability should be dismissed,.
The Takeaway
When defending these matters, if plaintiff can be deemed a bystander, at a minimum, you’re on your way as a defendant in PA in taking the appropriate steps in dismissing a strict liability cause of action against your client.