Bell v. 3M Co.
344 F. Supp. 3d 1207
D. Colo.2018Background
- Residents of Fountain, Security, and Widefield, Colorado allege groundwater contamination from AFFF use at Peterson AFB, exposing them to PFCs (PFOS, PFOA, PFHpA) and increasing risk of latent illnesses and property damage.
- Multiple related lawsuits were consolidated; the operative pleading is a Second Amended Complaint asserting negligence, products liability, medical monitoring (class), and civil conspiracy claims on behalf of classes and individual plaintiffs.
- Plaintiffs seek a court-ordered medical monitoring program and costs for periodic testing to detect latent disease allegedly caused by PFC exposure.
- Defendants (3M, Tyco/Ansul, Chemguard, National Foam, others) moved to dismiss the medical monitoring claim arguing Colorado courts do not recognize such a claim absent present physical injury; they also sought certification to the Colorado Supreme Court as an alternative.
- The court declined certification, concluded Colorado would probably recognize a medical monitoring cause of action in an appropriate case, but dismissed the claim without prejudice for insufficient specificity as to (a) monitoring procedures and (b) how monitoring differs from ordinary care; the civil conspiracy claim (sounding in fraud) was also dismissed for failure to plead with Rule 9(b) particularity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Recognition of medical-monitoring cause of action under Colorado law | Colorado should recognize medical monitoring for asymptomatic plaintiffs exposed to toxicants (relying on Cook) | Colorado has not recognized it; state law requires present physical injury | Court: Colorado Supreme Court would probably recognize medical monitoring in an appropriate case (reaffirming Cook) |
| Article III standing for medical-monitoring claim | Injury is concrete: the cost of monitoring (or increased risk) is a cognizable, redressable injury | Asymptomatic plaintiffs lack a concrete/injury-in-fact | Court: Plaintiffs have standing based on the concrete, quantifiable injury of monitoring costs |
| Pleading required elements of medical monitoring | Complaint plausibly pleads significant exposure and increased risk | Plaintiffs fail to plead existence, necessity, and specificity of monitoring/testing procedures distinct from ordinary care | Court: Exposure and increased risk adequately pled; complaint fails to plead specific monitoring procedures and necessity — medical-monitoring claim dismissed without prejudice to amend |
| Civil conspiracy (fraud-based) | Alleged coordinated concealment and misrepresentations about AFFF safety | Claims sound in fraud and must satisfy Rule 9(b) particularity | Court: Conspiracy claim dismissed without prejudice for failure to plead time, place, content, actors, and overt acts with requisite particularity |
Key Cases Cited
- Cook v. Rockwell Intl. Corp., 755 F. Supp. 1468 (D. Colo. 1991) (district court predicted Colorado would likely recognize medical-monitoring claims and articulated elements for such claims)
- Metro-N. Commuter R.R. v. Buckley, 521 U.S. 424 (1997) (U.S. Supreme Court limited broad lump-sum recovery for asymptomatic plaintiffs seeking medical-monitoring costs and emphasized state courts’ tailored remedies)
- June v. Union Carbide Corp., 577 F.3d 1234 (10th Cir. 2009) (interpreting statutory requirement of bodily injury under Price-Anderson; discussed limits of ‘‘subclinical’’ injury theories)
- Dodge v. Cotter Corp., 203 F.3d 1190 (10th Cir. 2000) (addressed fear-of-cancer emotional-distress claims in toxic-tort context and distinguished those from medical-monitoring remedies)
- Redland Soccer Club v. Dep’t of the Army, 696 A.2d 137 (Pa. 1997) (example of case discussing elements and proof required to obtain medical-monitoring relief)