Brown v. Corteva, Inc.

1

BEVERLY BROWN, et al., Plaintiffs, v. CORTEVA, INC., et al., Defendants.

No. 7:23-CV-1409-D

United States District Court, E.D. North Carolina, Southern Division

September 18, 2024

ORDER

JAMES C. DEVER III, United States District Judge

On October 6, 2023, Beverly Brown (“Brown”), Kenneth Engel (“Engel”), Shirley McNatt (“McNatt”), and Robert Richards (“Richards”) (collectively “plaintiffs”) filed a complaint against Corteva Inc. (“Corteva”), DuPont de Nemours, Inc. (“DuPont”), EIDP, Inc. (“EIDP”), the Chemours Company (“Chemours”), and the Chemours Company FC, LLC (“Chemours FC”) (collectively “defendants”) [D.E. 1]. On December 5, 2023 defendants moved to dismiss plaintiffs' complaint for failure to state a claim [D.E. 19] and filed a memorandum in support [D.E. 20]. See Fed.R.Civ.P. 12(b)(6). On December 13, 2023, plaintiffs amended their complaint [D.E. 21]. Plaintiffs allege: (1) negligence, (2) gross negligence, (3) negligence per se, (4) public nuisance, (5) private nuisance, (6) trespass to real property, (7) trespass to chattel, and (8) unfair and deceptive trade practices (“UDTPA”). See [D.E. 21] ¶¶ 83-120. On December 27, 2023, defendants moved to dismiss plaintiffs' amended complaint for failure to state a claim [D.E. 22] and filed a memorandum in support [D.E. 23]. See Fed.R.Civ.P. 12(b)(6). On August 2,2024, plaintiffs responded in opposition [D.E. 36]. On August 16, 2023, defendants replied [D.E. 37]. As explained below, the court grants defendants' motion to dismiss in part and denies it in part.

Plaintiffs' negligence, gross negligence, private nuisance, and trespass to real property claims survive.

I.

In 1985, McNatt became a resident of Cumberland County. See Am. Compl. [D.E. 21] ¶ 77. McNatt has a residence connected to a private well. See Id. In 1992, Brown became a resident of New Hanover County. See id. at ¶ 71. Brown has a residence connected to the public water system. See Id. In 2002, Engel became a resident of New Hanover County. See id. at ¶ 74. Engel has a residence connected to the public water system. See id. In 2005, Richards became a resident of Pender County. See id. at ¶ 80. Richards has a residence connected to a private well. See Id. Plaintiffs allege as a result of defendants' actions: (1) McNatt developed breast cancer and thyroid disease, (2) Brown developed colon cancer and Graves' disease, (3) and Engel and Richards developed prostate cancer. See id. at ¶¶ 73,76,79, 82.

The Fayetteville Works Plant is located in Bladen County, North Carolina. See id. at ¶ 28. The Fayetteville Works Plant manufactures films, fibers, and specialty chemicals in five discrete manufacturing areas including fluromonomers/nafion, polymer processing aid (‘‘PPA”), butacite, SentryGlas, and polyvinvyl fluoride (“PVF”). See id. at ¶ 30. Since the 1980s, defendants have used PFAS at the Fayetteville Works Plant. See id. at ¶¶ 33-34.

A drainage channel used at the outfall area exists from the Fayetteville Works Plant to the Cape Fear River. See id. This segment of the Cape Fear River constitutes surface water, “making it a source of water supply for drinking, culinary, or food processing purposes[,] as well as for aquatic life propagation and maintenance of biological integrity (including fishing and fish), wildlife, secondary recreation, and agriculture.” id. at ¶ 29. The wastewater from the Fayetteville Works Plant flows from the outfall area through wastewater treatment plants. See id. at ¶ 30. The wastewater treatment plant dilutes the water with hundreds of thousands of gallons of Cape Fear River water and then discharges the diluted chemicals into the Cape Fear River. See id. While the dilution makes it harder to detect the chemicals, it does not reduce the contaminants flowing into the river. See id. Additionally, the Fayetteville Works Plant has one stack that releases airborne emissions of perfluoroalkyl, which results in additional water contamination of the Cape Fear River. See id. at¶31.

Scientists have linked exposure to polyfluoroalkyl substances (“PFAS”) to kidney cancer, testicular cancer, prostate cancer, ovarian cancer, non-Hodgkin's lymphoma, liver disease, ulcerative colitis, thyroid disease, hypercholesterolemia, and pregnancy-induced hypertension. See id. at ¶ 32. PFAS remain in the environment, particularly in water, for years. See Id. at ¶ 39.

Defendants use Nacion byproducts 1 and 2 in their manufacturing process. See Id. at¶33. Additionally, in the early 2000s, following pressure from government regulators, defendants replaced perfluorooctanoic acid (‘TFOA”) with hexafluoropropylene oxide dimer acid (“GenX”) in its manufacturing process for safety reasons. See id. at ¶ 33. Defendants used GenX, despite animal studies dating back to 1963 that demonstrated an association between GenX and various negative health impacts on laboratory animals. See id. at ¶ 35. These animal studies indicate that GenX may be as toxic or more toxic than PFOA and could result in adverse effects in humans including reproductive effects, developmental effects, liver effects, immune system disruption, stomach, ocular, and tongue toxicity, and cancer. See id. at ¶ 36. Even with this knowledge, defendants continued to discharge GenX into the Cape Fear River. See id. at ¶ 37. GenX remains in humans' bloodstream longer than other PFAS, requiring testing other biomarkers to determine GenX exposure over time. See id. at ¶ 39.

In November 2016, North Carolina State University researchers published a study identifying GenX and other PFAS in the Cape Fear River's water at King's Bluff from June 14, 2013, to December 2,2013. See Id. at ¶¶ 40-42. GenX levels reached 4,500 parts per trillion and averaged at 631 parts per trillion, exceeding the state's safety standard of 140 parts per trillion. See id. at¶40.

On June 19, 2017, environmental regulators found GenX in quantities exceeding the state's safety standard at four wastewater treatment plants at Bladen Bluffs, N.W. Brunswick, Pender County, and CFPU Sweeney. See id. at ¶ 43. On June 20, 2017, Chemours announced it would capture, remove, and safely dispose of the contaminated wastewater. See id. Nonetheless, “[v]ery recent testing” shows that plants and vegetables near the Fayetteville Works Plant remain contaminated, meaning that residents potentially consumed PFAS discharged from the Fayetteville Works Plant. Id. at ¶ 44.

In November 2018, North Carolina State University researchers tested Fayetteville Works Plant neighboring residents' blood and discovered that 99% of participants tested positive for Nation byproduct 2, reflecting more PFAS in their blood than individuals in other locations. See id. at ¶ 45. On February 25, 2019, Chemours and North Carolina entered a consent order requiring Chemours to remediate its discharge of PFAS. See Id. at ¶¶ 46-48. Nonetheless, it is “exceedingly difficult... if not impossible” to remove PFAS from pipes, fittings, and fixtures. id. at ¶¶ 50-53. Additionally, defendants have attempted to shield assets from creditors and victims. See id. at¶¶ 54-69.

On June 15, 2022, the EPA released new advisory drinking water levels capping GenX at 10 parts per trillion. See id. at ¶ 49. ‘These new health advisories are ‘non-enforceable and non-regulatory' and ‘provide technical information to states agencies and other public health officials on health effects, analytical methods, and treatment technologies associated with drinking water contamination.”' Id.

II.

A motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp, v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md. Ct, of Appeals, 626 F.3d 187,190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298,302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences “in the light most favorable to [the nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549,557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155 (2015). A court need not accept as true a complaint's legal conclusions, “unwarranted inferences, unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79. Rather, a plaintiff's factual allegations must “nudge[] [his or her] claims,” Twombly, 550 U.S. at 570, beyond the realm of “mere possibility” into “plausibility.” Iqbal, 556 U.S. at 678-79.

“Determining whether a complaint states a plausible claim for relief. . . [is] a context specific task that requires the reviewing court to draw on judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the complaint does not suffice. Id.

When evaluating a motion to dismiss, a court considers the pleadings and any materials “attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011); see Fed.R.Civ.P. 10(c); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159,165-66 (4th Cir. 2016); Thompson v, Greene, 427 F.3d 263,268 (4th Cir. 2005). A court also may consider a document submitted by a moving party if it is “integral to the complaint and there is no dispute about the document's authenticity” without...