Barry v. Weyerhaeuser Co.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Scott T. Varholak United States Magistrate Judge.

         This civil action is before the Court on the Motion of Defendant Weyerhaeuser Company to Dismiss Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) [#22] (“the Motion”). The Motion has been referred to this Court. [#23] This Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be DENIED.

         I. FACTUAL ALLEGATIONS^[1]

         Defendant is one of the world's largest private owners of timberlands. [#19 at ¶ 6] Among the products produced by Defendant are TJI joists used for residential construction. [Id. at ¶¶ 7-8] The joists are composed of wood particles and treated with Flak Jacket coating, a proprietary coating designed by Defendant. [Id.] The coating is designed to enhance the fire resistance of joists used in construction. [Id. at ¶ 8]

         In December 2016, Defendant began commercial production of a fourth generation of Flak Jacket known as “Gen 4.” [Id. at ¶ 9] Gen 4 Flak Jacket contained a formaldehyde-based resin. [Id. at ¶ 11] In April 2017, Defendant received notice that homeowners were complaining of an odor in homes in which TJI joists with Gen 4 Flak Jacket were installed. [Id. at ¶ 12] Defendant concluded that the odor was related to formaldehyde off-gassing. [Id.]

         Production of the Gen 4 Flak Jackets continued through June 27, 2017. [Id. at ¶ 9] On July 6, 2017, Defendant sent a letter to “Dealers/Distributors/Home Builders” warning them of an odor in homes that was “related to the coating of the TJI's, which does contain formaldehyde.” [Id. at ¶ 13] One week later, Defendant sent another letter asking dealers to “[p]lease not sell any TJI Joists with Flak Jacket Protection manufactured after December 1, 2016.” [Id. (emphasis in original)] In that same letter, Defendant wrote that it would be “collecting all existing inventory of TJI Joists with Flak Jacket protection manufactured after Dec[ember] 1, 2016.” [Id.] Another letter sent that same day warned builders that “[i]f your contractors need to work in the basements in affected homes, we recommend that you contact our customer care line for guidance.” [Id.]

         On July 18, 2017, Defendant admitted that it “ha[d] determined that recent customer feedback regarding an odor in certain newly constructed homes [wa]s related to a recent formula change to the Flak Jacket coating that included a formaldehyde-based resin.” [Id. at ¶ 14] Defendant announced that it had stopped all production, sales and shipment of the product. [Id.] Defendant advised affected homeowners to vacate their homes until the Flak Jacket could be remediated. [Id.] According to the First Amended Complaint, months before ordering cessation of production and distribution of the TJI joists with Gen 4 Flak Jacket protection, test results notified Defendant that these products had been off-gassing formaldehyde at levels known to cause injury and illness. [Id. at ¶¶ 16, 17]

         The First Amended Complaint alleges that the Occupational Safety and Health Administration (“OSHA”) has recognized formaldehyde as a cancer hazard that has been linked to increased risk of cancer of the nose, throat, and sinuses, nasopharyngeal and oropharyngeal cancer, lung cancer, and leukemia. [Id. at ¶ 18] Exposure also results in respiratory illnesses. [Id.] OSHA formaldehyde standards set a permissible exposure limit at .75 parts per million measured as an eight-hour time weighted average. [Id. at ¶ 19] ¶ 2 parts per million, the maximum exposure allowed is 15 minutes. [Id.] Levels exceeding 100 parts per million are immediately dangerous to life and health. [Id.]

         Plaintiffs worked as inspectors, supervisors, and in other construction capacities during the construction and inspection of homes built using TJI joists treated with Gen 4 Flak Jacket. [Id. at ¶ 10] ¶ 2017, each of the Plaintiffs worked in and around homes containing TJI joints treated with Gen 4 Flak Jacket protection. [Id.] More specifically, the homes Plaintiffs Doug Barry, Michael Kiernan, Dennis Mauser, Linda Spuehler, and Paul Moler worked in and around were located in the Wyndham Hill subdivision in Weld County, Colorado, and the homes Plaintiff Nicholas Sooter worked in and around were located in the Dove Creek subdivision in Douglas County, Colorado. [Id.]

         Because of their work, each of the Plaintiffs were exposed to formaldehyde contained in TJI joists with Gen 4 Flak Jacket protection. [Id.] Plaintiffs “were unknowingly exposed to dangerous levels of formaldehyde, without adequate protection, for hours a day over the course of months.” [Id.] Specifically, “Plaintiffs were exposed to levels exceeding 2 parts per million for many hours per day, for months, without any hygiene monitoring or medical surveillance.” [Id. at ¶ 19] The levels of formaldehyde to which Plaintiffs were exposed “were so excessive that it was virtually impossible for them not to become ill.” [Id. at ¶ 22] As a result of this exposure, Plaintiffs suffered injuries, “including coughs, shortness of breath, burning eyes, rashes, [] sinus issues, and increased risks of respiratory ailments and cancer.” [Id. at ¶ 30; see also Id. at ¶¶ 21, 36]

         On June 28, 2018, Plaintiffs filed the instant action. [#1] Plaintiffs' First Amended Complaint brings two causes of action: strict products liability and negligence. [#19 at 7-10] On October 5, 2018, Defendant filed the instant Motion pursuant to Federal Rule of Civil Procedure 12(b)(6), seeking to dismiss the First Amended Complaint for failure to state a claim. [#22] Plaintiffs have responded to the Motion [#24], and Defendant replied [#31].

         II. STANDARD OF REVIEW

         Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The court's ultimate duty is to ...