Bell v. 3M Co.

344 F.Supp.3d 1207

Gregory BELL, Jose Acevedo, and Denise Durbin, Individually and as Parent and Next Friend of K.D. and B.D., for Themselves and on Behalf of All Others Similarly Situated, Plaintiffs,

v.The 3M COMPANY f/k/a Minnesota Mining and Manufacturing Co., and Tyco Fire Products, L.P., Successor-in-the Interest to the Ansul Company, Defendants.

Civil Action No. 16-cv-02351-RBJ

Consolidated Cases 16-cv-02394-RBJ

16-cv-02352-RBJ

United States District Court, D. Colorado.

Signed September 25, 2018

David P. Hersh, Kirsten N. Kube, Lisa Rey Marks, David Dean Batchelder, Lewis Alan Osterman, Meghan C. Quinlivan, Seth Alan Katz, Burg Simpson Eldredge Hersh & Jardine, PC, Englewood, CO, Louise Rita Caro, Napoli Shkolnik PLLC, Miami, FL, Kelly A. Hyman, Franklin D. Azar & Associates, PC, Aurora, CO, Michael W. McDivitt, Leah Caroline Garrett, Michael David Eric McDivitt, Anthony Dean Tracy, McDivitt Law Firm, P.C., Colorado Springs, CO, Hunter Jay Shkolnik, Napoli Shkolnik PLLC, New York, NY, Patrick James Lanciotti, Napoli Shkolnik PLLC, Melville, NY, for Plaintiffs.

Aamer Ravji, Stephanie L. Gase, William A. Brewer, III, Brewer Attorneys & Counselors, Dallas, TX, Beth A. Landes, Maxwell D. Herman, Brewer, Attorneys & Counselors, David S. Weinraub, Douglas E. Fleming, III, Emily L. Van Tuyl, Katherine Anne Armstrong, Mark S. Cheffo, Dechert, LLP, New York, NY, Christopher H. Dolan, Faegre Baker Daniels LLP, Minneapolis, MN, Daniel Leslie Ring, Joshua Dietrich Yount, Timothy S. Bishop, Mayer Brown LLP, Heather Campbell Burgess, Faegre Baker Daniels LLP, Chicago, IL, Heather Carson Perkins, Faegre Baker Daniels LLP, Kellen N. Wittkop, Davis Graham & Stubbs, LLP, Andrew Christopher Efaw, Wheeler Trigg O'Donnell, LLP, Daniel Edward Rohner, Stephen Kirk Ingebretsen, Paul Anthony Williams, Shook Hardy & Bacon, LLP, Jesse Daniel Rodgers, Ronald Lyle Hellbusch, Todd R. Seelman, Lewis Brisbois Bisgaard & Smith, LLP, Ronald M. Eddy, Peter George Koclanes, Sherman & Howard, L.L.C., Denver, CO, Matthew Dumont Clark, Faegre Baker Daniels LLP, Boulder, CO, Jae Hong Lee, Dechert LLP, San Francisco, CA, Joseph G. Petrosinelli, Williams & Connolly, LLP, Washington, DC, Keith Edward Smith, Greenberg Traurig, LLP, Albert G. Bixler, Eckert Seamans Cherin & Mellott, LLC, Philadelphia, PA, John W. Cerreta, Day Pitney, LLP, Hartford, CT, Jonathan Isaac Handler, Keith Harris Bensten, Day Pitney, LLP, Boston, MA, Joseph A. Salazar, Jr., Lewis Brisbois Bisgaard & Smith, LLP, Sacramento, CA, Michael Luther Carpenter, Gray Layton Kersh Solomon Furr & Smith, P.A., Gastonia, NC, for Defendants.

ORDER ON MEDICAL MONITORING MOTIONS

R. Brooke Jackson, United States District Judge

Defendants Tyco Fire Products, Chemguard and 3M move to dismiss plaintiffs' medical monitoring claims, arguing that Colorado's appellate courts have not recognized such a cause of action. Tyco and Chemguard alternatively request that the issue be certified to the Colorado Supreme Court. Several other defendants ask to join one or both of the motions to dismiss. I decline to certify the issue to the Colorado Supreme Court, hold that Colorado's appellate courts probably would recognize such a claim, but nevertheless grant the motions to dismiss with leave to amend for reasons explained in this order. In this order, although not related to the medical monitoring claim as such, I also grant defendant 3M's motion to dismiss plaintiffs' civil conspiracy claim.

I. BACKGROUND

Plaintiffs, who reside in the communities of Fountain, Security, or Widefield, Colorado, allege that Aqueous Film Forming Foam (AFFF) used at Peterson Air Force Base as a firefighting suppressant has contaminated the groundwater in their communities for decades. AFFF contains chemicals known as Perfluorinated Compounds ("PFCs"), including perfluorooctane sulfonate ("PFOS"), perfluorooctanoic acid ("PFOA") and perfluorheptanoic acid ("PFHpA"), all of which, according to plaintiffs, can cause serious health impacts and affect property values.

Original Complaints

The original plaintiffs -- Gregory Bell, Jose Acevedo and Denise Durbin – filed two cases September 18, 2016. In case No. 16-cv-2351-RBJ, filed on their own behalf and on behalf of a purported class of similarly situated individuals, they alleged that the contamination of their water has caused property-related damages. In case No. 16-cv-2352-PAB, also filed individually and on behalf of a purported class, plaintiffs sought the costs of medical monitoring which they claimed to be necessary for the early detection of illnesses caused by the contamination. In both cases they named The 3M Company, The Ansul Company and National Foam, manufacturers of AFFF, as defendants. Plaintiffs asserted claims of negligence, defective product/failure to warn, defective product/design defect and unjust enrichment. Plaintiffs' counsel in the first and second cases was Kevin S. Hannon of Denver.

A few days later a third case was filed, Davis v. The 3M Corp. , No. 16-cv-02394-RM. This was a class action filed on behalf of a group of nine individuals. Plaintiffs named the same three companies plus Angus Fire, Buckeye Fire Protection Co. and Chemguard as defendants. They purported to act on behalf of three classes: a "Municipal Water Bodily Injury Class;" a "Private Water Bodily Injury Class;" and a "Property Damage Class." They asserted claims of negligence, private nuisance, medical monitoring, products liability/failure to warn, products liability/defective design, and unjust enrichment. ECF No. 1. Plaintiffs' counsel were Napoli Shkolnik PLLC of New York and the McDivitt Law Firm of Colorado Springs.

All parties to the two Bell cases jointly filed a motion to consolidate the three cases for pre-trial proceeds. ECF No. 32. The Davis defendants who were also named in the Bell cases joined the motion, but the Davis defendants who were named only in Davis did not. The Davis plaintiffs opposed consolidation. The Court granted the motion to consolidate the three cases and directed the parties to file all further pleadings in 16-cv-2351. ECF No. 57.

There was also a dispute among counsel for appointment as "lead interim class counsel" between counsel for the Bell plaintiffs (Mr. Hannon) and counsel for the Davis plaintiffs (the Napoli Shkolnik and McDivitt law firms). During a Scheduling Conference held on August 24, 2017 the Court appointed none of the competing lawyers or law firms as lead plaintiff's counsel, instead selecting David Hersh of the Burg Simpson law firm of Denver who had, in the interim, appeared as additional counsel for the Davis plaintiffs, as lead counsel. See ECF No. 83 at 7-8.

First Amended Complaint

A First Amended Complaint was filed in the consolidated cases on September 22, 2017. ECF No. 88. Because this complaint has been superseded by a Second Amended Complaint, I won't dwell on it other than to note the plaintiffs listed in this version include none of the plaintiffs named in any of the original three complaints.

Second Amended Complaint

On December 8, 2017, though still under the caption of the original Bell case which lists Gregory Bell, Jose Acevedo and Denise Durban as plaintiffs and 3M and Tyco Fire Products (as successor to Ansul) as defendants, plaintiffs filed a Second Amended Complaint in the consolidated class cases. ECF No. 126.¹ This plaintiff group as identified in the body of the Second Amended Complaint is comprised of 16 individuals, none of whom were named as plaintiffs in any of the original three cases, and only some of whom were listed in the First Amended Complaint. These plaintiffs are represented by the Burg Simpson, Napoli Shkolnik and McDivitt law firms but not by Mr. Hannon.

The defendants identified in the body of the Second Amended Complaint are The 3M Company; Tyco Fire Products L.P. (as successor to Ansul), Buckeye Fire Equipment Company, Chemguard, National Foam, Inc., Kidde Fire Fighting, Inc. (individually and as successor to National Foam, Inc.); Kidde PLC, Inc. (individually and as successor to National Foam); Williams Holdings, Inc. (individually and as successor to National Foam); Williams Holdings US, Inc.; Williams Corporation; Kidde-Fenwal, Inc. (individually and as successor to National Foam); UTC Fire & Security Americas Corporation, Inc.; and Enterra Corporation (individually and as successor to National Foam).

The Second Amended Complaint is presently the operative complaint in the consolidated cases. Plaintiffs assert class claims on behalf of a Medical Monitoring Class and a Property Damage Class. ECF No. 126 at ¶ 148. They also assert claims on behalf of themselves individually. Thirteen of the class representatives claim that they suffer from diseases ranging from pregnancy complications to kidney and thyroid disease which they attribute to the exposure to PFCs in their water. Id. at ¶¶ 50-64. These class representatives bring claims on behalf of the class as well as individual personal injury and property damage claims. Id. Three class representatives who do not presently suffer from such diseases bring only claims on behalf of the class and individual property damage claims. Id. at ¶¶ 65-67.

The Second Amended Complaint asserts five claims for relief: (1) negligence; (2) medical monitoring; (3) products liability for failure to warn; (4) products liability for defective design; and (5) civil conspiracy. Id. at 43–57. Plaintiffs seek to certify sub-classes, and they seek the following relief: a declaration that defendants acted with negligence, gross negligence, or reckless disregard for health, safety, and property; an order requiring defendants to implement a testing and monitoring protocol to test the plaintiffs' water; an order requiring defendants to implement a medical monitoring protocol; and an award of damages, attorneys' fees, costs, and post-judgment interest. Id. at 58.

Individual Actions

To complete the unusual procedural posture of this litigation I note that since the Second Amended Complaint was...