Priselac v. The Chemours Company
7:20-cv-00190
E.D.N.C.Mar 28, 2022Background
- Plaintiff Tammie Priselac alleges that defendants (Chemours, DuPont entities, Corteva, and individual officers) discharged PFAS/PFCs (including GenX and C8) from the Fayetteville Works Site, contaminating the Cape Fear River and Wilmington drinking water (2009–2019).
- Priselac claims increased risk of disease from exposure and seeks compensatory/punitive damages, medical monitoring/diagnostic testing costs, disgorgement, attorneys’ fees, and class relief under multiple tort theories and the NCUVTA.
- Defendants removed the action to federal court and moved under Rule 12(b)(6) to dismiss most claims; the NCUVTA claim was not challenged in the motion.
- Central legal dispute: whether medical monitoring (and the cost of diagnostic testing) is cognizable under North Carolina law absent a present physical injury.
- Court ruled: dismissed claims for medical monitoring remedies, private nuisance, negligence, negligent failure to warn, unjust enrichment, and battery; allowed trespass, civil conspiracy, and the NCUVTA claim to proceed; dismissed defendant Long but kept McGaughy and Johnson as to trespass-related allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Cognizability of medical monitoring / diagnostic-testing damages | Priselac: present need for testing (increased risk) is an injury entitling her to medical-monitoring relief. | Defendants: North Carolina does not recognize medical monitoring or costs absent a present physical injury. | Dismissed: medical monitoring/diagnostic-testing costs not cognizable absent present physical injury (follow Curl). |
| Trespass (to real property) | Defendants' discharges entered plaintiffs' property and water supply; trespass occurred. | Defendants: insufficient allegation of unauthorized entry/damage. | Survives: complaint plausibly alleges unauthorized entry and nominal damages; trespass claim allowed. |
| Private nuisance | Priselac: contamination interferes with use/enjoyment of property. | Defendants: alleged harm is to a public water supply—interest is public, not private. | Dismissed: claims target a public interest (public utility); no private-nuisance recovery. |
| Negligence & negligent failure to warn | Priselac: defendants breached duties causing increased risk and need for monitoring. | Defendants: no cognizable injury alleged (only risk/monitoring); failure-to-warn duty not plausibly pleaded. | Dismissed: plaintiff did not allege actual injury (only risk); negligent failure-to-warn also dismissed. |
| Unjust enrichment | Priselac: defendants unjustly benefited from their operations at plaintiffs' expense. | Defendants: no benefit was conferred to defendants by polluting plaintiffs; public-policy concerns. | Dismissed: court declines to expand NC law to treat pollution as a conferral of benefit. |
| Civil conspiracy | Priselac: defendants agreed to violate environmental laws and acted pursuant to a scheme harming plaintiffs. | Defendants: insufficient agreement/underlying torts. | Survives: conspiracy adequately pleaded because underlying trespass claim survives. |
| Battery (offensive/harmful contact) | Priselac: contacting plaintiffs via toxic substances constitutes offensive contact; constructive intent alleged. | Defendants: conduct was not directed at plaintiff specifically and amounts to negligence, not intent. | Dismissed: allegations insufficient to show willful/wanton conduct directed at plaintiff—closer to negligence. |
| Individual officer liability (Long, McGaughy, Johnson) | Priselac: officers controlled operations and permits, so may be personally liable. | Defendants: mere managerial roles insufficient; no active participation alleged. | Mixed: Long dismissed (only managerial allegations); McGaughy and Johnson remain as plausibly alleged to have actively participated in trespass-related conduct. |
Key Cases Cited
- Curl v. American Multimedia, Inc., 187 N.C. App. 649 (N.C. Ct. App. 2007) (NC Court of Appeals held medical monitoring/costs not cognizable absent present physical injury).
- Nix v. Chemours Co. FC, LLC, 456 F. Supp. 3d 748 (E.D.N.C. 2019) (PFAS contamination litigation; precedent on several tort issues).
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard: plausibility required).
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading standard; plausibility and ‘nudging’ beyond mere possibility).
- Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88 (4th Cir. 2011) (distinguishing public vs private interests in municipal water contamination).
- Pleasant v. Johnson, 312 N.C. 710 (N.C. 1985) (constructive intent can support battery where conduct is willful/wanton and directed at plaintiff).
- Abernathy v. Consol. Freightways Corp. of Del., 321 N.C. 236 (N.C. 1987) (willful/wanton conduct not established where conduct not directed at plaintiff; ordinary negligence).
- Wilson v. McLeod Oil Co., 327 N.C. 491 (N.C. 1990) (corporate officer may be personally liable where he actively participated in tortious operations).
- Booe v. Shadrick, 322 N.C. 567 (N.C. 1988) (elements and restitution nature of unjust enrichment).