United States District Court, D. Colorado
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,
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
Brooke Jackson United States District Judge
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.
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 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.
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
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.
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.
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.
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. 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.
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).
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
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.
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.
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.
STANDARD OF REVIEW
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.
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).
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.
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).”).
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).
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.
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.
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.
Plaintiffs' Medical Monitoring Claim.
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.
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
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).
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 ...