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Bell v. 3M Co.

United States District Court, D. Colorado

September 25, 2018

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.

          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 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 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 filed, and for reasons only they know for sure at this point, the Napoli Shkolnik and McDivitt law firms have filed 41 additional cases in this district, all arising from the alleged AFFF contamination of the groundwater in the Fountain, Security and Widefield communities. Each of these lawsuits is filed on behalf of a large group of individuals. The groups vary in size but average approximately 175 plaintiffs per case for a total of approximately 7, 200 individual plaintiffs. Presumably all of these individuals are members of one or more of the purported classes in the consolidated class action cases. So far as the files show, the defendants have not been served.

         The existence of the 41 individual plaintiffs' cases has obvious implications for the class action cases and vice-versa. However, other than completing my summary of the procedural history of the “3M cases” I need not otherwise resolve those issues today.

         II. STANDARD OF REVIEW

         In three orders issued today I am addressing all pending motions in the three cases consolidated under the Bell et al. v. The 3M Company caption other than the motion for class certification which is set for hearing on November 30, 2018. As noted above, the present order primarily addresses defendants' motions to dismiss plaintiffs' claim for funds to implement a program for “medical monitoring” in the affected communities.

         To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is a claim that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), conclusory allegations are not entitled to be presumed true, Iqbal, 556 U.S. at 681. However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).

         3M's motion to dismiss plaintiffs' medical monitoring claim on the basis that plaintiffs lack standing to assert this claim is “properly determined pursuant to Rule 12(b)(1) because such argument attacks the Court's subject matter jurisdiction.” Irvine v. I.C. System, Inc., 198 F.Supp.3d 1232, 1235 (D. Colo. 2016). Plaintiffs bear the burden of establishing subject matter jurisdiction. Id.

         3M also moves to dismiss plaintiffs' civil conspiracy claim, which sounds in fraud, thereby invoking the standard under Fed.R.Civ.P. 9(b). A party pleading fraud “must state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b); see also In re Qwest Commc'ns Int'l, Inc. Sec. Litig., 387 F.Supp.2d 1130, 1153 (D. Colo. 2005) (“To the extent the civil conspiracy claim is based on acts that are unlawful because they constitute fraud, . . . the fraudulent acts must be pled under the standard of Rule 9(b).”).

         Finally, pursuant to Rule 21.1 of Colorado Rules of Appellate Procedure, the Colorado Supreme Court may “answer a question of state law certified to it by a United States District Court if the question ‘may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the [Colorado] Supreme Court.'” Frias v. Chris the Crazy Trader, Inc., No. 13-CV-01240-MSK-KLM, 2014 WL 2975321, at *2 (D. Colo. July 2, 2014), aff'd 604 Fed.Appx. 628 (10th Cir. 2015) (quoting Colo.App. R. 21.1. (a)). A district court's decision to certify a question is discretionary, and such a decision may be appropriate “where the legal question at issue is novel and the applicable state law is unsettled.” Id. (citations omitted). “However, certification is not to be routinely invoked whenever a federal court is presented with an unsettled question of state law. [. . . ]Absent some recognized public policy or defined principle guiding the exercise of jurisdiction conferred, federal courts bear a duty to decide questions of state law when necessary to render a judgment.” Colony Ins. Co. v. Burke, 698 F.3d 1222, 1235 (10th Cir. 2012) (internal quotation marks and citation omitted).

         III. ANALYSIS

         Plaintiffs assert a claim for medical monitoring under Colorado law on the grounds that they were exposed to PFCs due to defendants' actions. Plaintiffs contend that they are therefore at a higher risk of contracting a serious latent disease for which periodic medical testing is reasonably necessary, and that such testing exists, making the early detection of those diseases possible and beneficial. ECF No. 126 at 49. Plaintiffs assert, for example, that because of their exposure to PFCs, they are at an increased risk of developing “effects on the liver and immune system, high cholesterol levels, changes in thyroid hormone, and kidney cancer.” Id. at 18. However, defendants dispute the validity of such a claim under Colorado law, asserting that Colorado courts do not recognize claims for medical monitoring absent a present physical injury. ECF No. 154 at 1; ECF No. 157 at 5.

         Each of the three substantive motions before the Court turns at least in part on this question. In Tyco and Chemguard's motion to dismiss plaintiffs' medical monitoring claim, which is joined by National Foam, Kidde PLC, Kidde-Fenwal, UTC Fire, and Buckeye (collectively, “Tyco and Chemguard”), defendants contend that Colorado courts have never recognized such a claim. ECF No. 154 at 1; see also ECF Nos. 160, 219, 159. Similarly, in 3M's motion to dismiss plaintiffs' medical monitoring and conspiracy claims, which is joined by Buckeye, 3M asserts that Colorado courts do not recognize claims for medical monitoring where there is no physical injury. ECF No. 157; see also ECF No. 159. Finally, Tyco and Chemguard ask this Court to certify this question to the Colorado Supreme Court in the event that their motion to dismiss is denied. ECF No. 155.

         Given that each of these motions turns on this central question of the status of medical monitoring claims in Colorado, I will address it first. I will then turn to the additional contentions defendants raise in their motions with respect to the medical monitoring claim, namely that plaintiffs lack standing to bring this claim and have failed to adequately plead all the elements of the claim. I will separately address 3M's contention that plaintiffs have failed to properly plead their claim of civil conspiracy.

         A. Plaintiffs' Medical Monitoring Claim.

         As defendants and plaintiffs acknowledge, the Colorado Supreme Court has not yet addressed the question at issue. Indeed, plaintiffs concede that “the Colorado Supreme Court has yet to explicitly address medical monitoring as a cause of action, ” and that there is “limited Colorado Supreme Court precedent” on the subject. ECF No. 182 at 3, 6. Instead, plaintiffs rely on a 1991 opinion from Judge Babcock in this district finding that “the Colorado Supreme Court would probably recognize, in an appropriate case, a tort claim for medical monitoring.” ECF No. 182 at 3-5 (quoting Cook v. Rockwell Int'l Corp., 755 F.Supp. 1468, 1471 (D. Colo. 1991)). Defendants, in contrast, note that despite Judge Babcock's prediction, the Colorado Supreme Court has not recognized such a claim in the intervening 27 years, and they contend that the trend nationally has been “to reject claims for medical monitoring.” ECF No. 199 at 2.

         In cases arising under diversity jurisdiction, like this one (see ECF No. 126 at 11),

the Court's task is not to reach its own judgment regarding the substance of the common law, but simply to “ascertain and apply the state law.” Where no controlling state law exists, the federal court must endeavor to predict what the state's highest court would do if it were faced with the same facts and issues. In making that prediction, a court considers “analogous decisions by the [state] Supreme Court, the decisions of the lower courts in [the state], the decisions of the federal courts and of other state courts.”

Home Loan Inv. Co. v. St. Paul Mercury Ins. Co., 78 F.Supp.3d 1307, 1312 (D. Colo. 2014) (internal citations omitted, alterations in original).

         Thus, to decide how the Colorado Supreme Court might decide this question, I will assess Judge Babcock's reasoning in Cook and examine the developments in other courts throughout the country and in Colorado. As a threshold matter, however, I first address one apparent inconsistency in plaintiffs' complaint related to the nature of their injury. Although, as noted above, 13 class representatives have diseases which they attribute at least in part to their exposure to PFCs, the medical monitoring claim is not based on any present physical injury. Instead, plaintiffs with and without current health issues assert the medical monitoring claim only for potential latent maladies. ECF No. 126 at 50 (plaintiffs note that they “are at a seriously increased risk of contracting numerous medical conditions, ” and they contend that medical examinations are ...


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