United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper, United States District Judge
Town of Princeton (“Princeton”) has filed this
lawsuit against Defendants Monsanto Company, Solutia Inc. and
Pharmacia Corporation (“Pharmacia”) (collectively
“Defendants”) alleging breach of the implied
warranty of merchantability (defective design), breach of the
express warranty of merchantability (failure to warn),
negligence and violation of the Massachusetts Consumer
Protection Act based upon Defendants’ conduct in
manufacturing and distributing a chemical called
polychlorinated biphenyls (“PCBs”). D. 1.
Defendants now move to dismiss. D. 15. For the reasons stated
below, the Court DENIES in part and ALLOWS in part the
Standard of Review
Fed.R.Civ.P. 12(b)(6) motion to dismiss, the Court assesses
whether the facts alleged “plausibly narrate a claim
for relief.” Schatz v. Republican State Leadership
Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation
omitted). That assessment requires a two-step, context-
specific inquiry. See García-Catalán v.
United States, 734 F.3d 100, 103 (1st Cir. 2013). The
Court begins by separating the factual allegations in the
complaint from the conclusory legal allegations. Id.
The factual allegations are accepted as true, while legal
conclusions may be disregarded. Id. Moreover, the
Court “draw[s] all reasonable inferences in favor of
the plaintiffs.” Gargano v. Liberty Int’l
Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009)
(citation omitted). Taken together, the factual allegations
must give rise to the “reasonable inference that the
defendant is liable for the misconduct alleged.”
Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir.
2011). The claim must be, in essence, “plausible on its
face.” García-Catalán, 734 F.3d
at 103. “In determining whether a [claim] crosses the
plausibility threshold, ” the Court is instructed to
“draw on its judicial experience and common
sense.” Id. at 103 (internal quotation marks
and citation omitted).
defenses, such as the statute of limitations, may be raised
in a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), provided that the facts establishing the defense
[are] clear ‘on the face of the plaintiff’s
pleadings.’” Santana-Castro v.
Toledo-Dávila, 579 F.3d 109, 113-14 (1st Cir.
2009) (alteration in original) (quoting Trans-Spec Truck
Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 320 (1st
Cir. 2008)) (internal quotation marks omitted). Dismissal
based upon timeliness is appropriate where “the
pleader’s allegations leave no doubt that an asserted
claim is time-barred.” LaChapelle v. Berkshire Life
Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998) (citations
omitted). If “the dates included in the complaint show
that the limitations period has been exceeded and the
complaint fails to ‘sketch a factual predicate’
that would warrant the application of either a different
statute of limitations period or equitable estoppel,
dismissal is appropriate.” Santana-Castro, 579
F.3d at 113-14 (quoting Trans-Spec Truck Serv., 524
F.3d at 320) (internal quotation marks omitted).
following allegations are taken from Princeton’s
complaint and accepted as true for the purposes of this
motion. Princeton is a town existing under the laws of the
Commonwealth of Massachusetts. D. 1 ¶ 5. Princeton is
the owner of the Thomas Prince School (“Prince
School”), an elementary school for approximately 380
students. D. 1 ¶¶ 5, 38. Pharamacia is a Delaware
limited liability company with its principle place of
business in Peapack, New Jersey. Id. ¶ 6.
Solutia Inc. is a Delaware corporation with its principal
place of business in St. Louis, Missouri. Id. ¶
7. Today Monsanto Company is known as Pharmacia. Id.
¶ 3. Monsanto Company and Solutia, Inc. are affiliated
companies that have assumed liabilities related to the
historical manufacture of PCBs. Id.
alleges that from 1935 to 1978 Monsanto Company was the
exclusive manufacturer of PCBs in the United States.
Id. Princeton further alleges that PCBs are odorless
and tasteless man-made chemicals that have been used in a
wide range of industrial applications. Id.
¶¶ 12, 14. Between 1950 and 1978, products
containing PCBs were widely used in the construction and
renovation of buildings, including school buildings,
throughout the United States. Id. ¶¶
15-16. By the late 1960s, public researchers had begun
questioning the safety of PCBs. Id. ¶ 29.
Effective January 1, 1979, Congress banned most uses of PCBs
and authorized the Environmental Protection Agency
(“EPA”) to apply restrictions to the usage of
PCBs. Id. ¶ 31. In 1996, the EPA concluded that
PCBs are “probable human carcinogens.”
Id. ¶ 19. On September 25, 2009, the EPA issued
a press release “advising school administrators about
the presence of PCBs in school buildings built between 1950
and 1978.” Id. ¶ 2. Concurrent with the
press release, for the first time the EPA published public
health levels for PCBs in school indoor air. Id.
have been demonstrated to affect the immune system,
decreasing resistance to pneumonia and infections and
increasing the risk of non-Hodgkin’s lymphoma.
Id. ¶ 21. PCBs are also associated with
elevations in blood pressure, serum triglycerides and serum
cholesterol. Id. ¶ 25. The neurological effects
of PCBs, to which children are particularly vulnerable,
include significant deficits in visual recognition,
short-term memory and learning. Id. ¶ 23. PCBs
have several characteristics, including migration and
degradation patterns, that render exposure to the chemicals
increasingly risky as times passes. Id. ¶ 17.
Princeton alleges that in 1977, Old Monsanto had discontinued
the manufacture of PCBs, although the company’s PCBs
continued to be sold and distributed through the end of 1978.
Id. ¶ 31. Princeton further alleges that as
early as the 1930s Old Monsanto knew of the toxicity of PCBs,
yet willfully failed to provide adequate warnings.
Id. ¶¶ 27-28.
Prince School was originally constructed in 1962.
Id. ¶ 39. Princeton alleges that tests
conducted at the Prince School in April 2011 detected PCBs at
concentrations in excess of 50 parts per million in window
caulking and glazing. Id. ¶ 40. Those detection
levels exceeded the PCB levels authorized by the EPA.
Id. In June 2011, additional samples taken at the
Prince School confirmed the presence of PCBs in window
caulking and demonstrated that PCBs were also present in
joint caulking. Id. ¶ 41. In response to these
high detection levels in the building materials, indoor air
samples were collected from the six classrooms for which
windows were scheduled to be replaced as part of the Prince
School’s window replacement project: those indoor air
samples were also found to contain concentrations of PCBs
above advisory levels established by the EPA. Id.
¶ 42. Thus, a more comprehensive indoor air sampling
program that evaluated indoor air within the entire school
building was undertaken on August 20, 2011. Id.
¶ 43. That comprehensive review found, inter
alia, PCB levels above the EPA’s guidance level in
two additional classrooms. Id. On September 1, 2011,
the PCB contamination prevented third, fourth and fifth
graders from attending class at the Prince School.
Id. ¶ 44. The students were bused to another
school for approximately one year. Id. Princeton has
since worked with the EPA and a contractor, Environmental
Compliance Services, to clean up the PCBs and establish a
monitoring and management plan. Id. ¶¶
45-48. Based upon the fact that the Prince School was
constructed when Old Monsanto produced at least 98% of the
PCBs in the United States, Princeton alleges that the PCBs at
the Prince School were manufactured by Defendants.
Id. ¶ 49.
September 4, 2012, Lexington, another town in Massachusetts,
filed a putative class action in this Court against the same
defendants named here (the “Town of Lexington
class action”). Id. ¶ 35. Princeton was a
member of the proposed class. Id. On behalf of the
proposed class, Lexington alleged PCB contamination in its
school and other Massachusetts schools. Id. On March
24, 2015, this Court denied Lexington’s motion to
certify the putative class. Id. ¶ 36.
instituted this action on July 1, 2015. D. 1. Defendants now
move to dismiss. D. 15. The Court heard the parties on the
pending motion and took the matter under advisement.
Statute of Limitations Standard
claims typically accrue, and thus the statute of limitations
starts to run, at the time the plaintiff is injured. See
Taygeta Corp. v. Varian Assocs., Inc., 436 Mass. 217,
229 (2002) (citations omitted); Bowen v. Eli Lilly &
Co. Inc., 408 Mass. 204, 205 (1990). In cases involving
inherently unknowable dangers, however, the discovery rule
provides that causes of action do not accrue until the
plaintiff learns, or reasonably should have learned, that she
has been harmed by the defendant’s conduct. See
Taygeta, 436 Mass. at 229 (citations omitted). The
claim, thus, accrues when the plaintiff “has knowledge
of both her injury and its likely cause or has sufficient
facts available such that she reasonably should discover the
probable causal relationship between her injury and conduct
of the defendant.” Errichiello v. Eli Lilly &
Co., 618 F.Supp. 484, 486 (D. Mass. 1985); see White
v. Peabody Constr. Co., Inc., 386 Mass. 121, 130 (1982)
(stating that “the statute of limitations begins to run
when the injured person has notice of the claim”).
the plaintiff has received sufficient notice of potential
injury arising from an inherently unknowable danger, the
plaintiff has a duty to inquire into her possible injury.
See, e.g., Bowen, 408 Mass. at 210;
Wolinetz v. Berkshire Life Ins. Co., 361 F.3d 44, 48
(1st Cir. 2004) (explaining that limitations period is
triggered by “sufficient information”). The
plaintiff may not “rest on [her] rights” and
“ignore [the] duty to further investigate.”
Pitts v. Aerolite SPE Corp., 673 F.Supp. 1123, 1128
(D. Mass. 1987) aff’d sub nom. Cornell v. E.I.
Dupont de Nemours & Co., Inc., 841 F.2d 23
(1st Cir. 1988). Application of this standard often gives
rise to factual inquiry and those factual disputes regarding
the date upon which the plaintiff knew or should have known
of her claim belong to the trier of fact. See
Wolinetz, 361 F.3d at 48.
Defendants Are Not, at this Juncture, Entitled to Dismissal
of Princeton’s Warranty and ...