955 F. Supp. 2d 452
E.D. Pa.2013Background
- Plaintiffs Daniel and Paula Slemmer (on behalf of putative classes) allege spray polyurethane foam (SPF) insulation manufactured by Barnhardt and installed by McGlaughlin caused property damage and health effects (eye/respiratory/neurological) following a 2012 installation.
- Plaintiffs assert negligence, strict liability, breach of express and implied warranties, unjust enrichment, UTPCPL violations, negligent supervision (against Barnhardt), and claims for injunctive/equitable relief and medical monitoring.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6); McGlaughlin also argued lack of CAFA jurisdiction under the local controversy exception and submitted extraneous evidence. Plaintiffs cross‑moved for discovery under Rule 56(d).
- The court declined to convert the motion to summary judgment (no discovery had occurred), denied McGlaughlin’s CAFA challenge, and denied plaintiffs’ Rule 56(d) cross‑motion as moot.
- The court sustained some claims (negligence, implied warranties, unjust enrichment, UTPCPL) and dismissed others without prejudice (negligent supervision, breach of express warranty, medical monitoring, and a separately pled injunctive‑relief claim). The court deferred ruling on strict liability pending Pennsylvania Supreme Court guidance in Tincher.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject‑matter jurisdiction under CAFA (local controversy exception) | McGlaughlin is a Pennsylvania defendant and >2/3 of class members are PA citizens, so exception applies and federal court must decline jurisdiction | Evidence supporting exception comes from extrinsic declarations; conversion to summary judgment inappropriate without discovery; defendant bears burden to prove exception | Court declined to convert motion, found evidence insufficient at pleadings stage, denied CAFA challenge and denied Rule 56(d) cross‑motion as moot |
| Negligence (duty, breach, causation, damages) | SPF is toxic, defendants failed to warn/design safely, causing property and personal injuries | Insufficient factual pleadings to show breach/duty to plaintiffs | Complaint sufficiently pleaded negligence; claim survives dismissal |
| Negligent supervision (Barnhardt) | Barnhardt certified/trainers created a duty to supervise installers | Pennsylvania law recognizes negligent supervision only in employer‑employee contexts; no duty arising from certification alone | Claim dismissed without prejudice (no recognized duty shown) |
| Strict liability (which Restatement governs) | Plaintiffs rely on Second Restatement; SPF is defective | Defendants argue Third Restatement governs and displaces Second | Court deferred ruling on strict liability claim until Tincher decision; did not dismiss |
| Express warranties | Plaintiffs allege breached express warranties | Defendants: plaintiffs fail to plead the terms or show breach | Express‑warranty allegations dismissed without prejudice; plaintiffs may amend to plead specifics |
| Implied warranties (merchantability/fitness) | SPF unfit/defective for intended use; caused damage and injury | Barnhardt: no factual support that SPF unfit | Court held implied warranty claims adequately pled; claim survives dismissal |
| Unjust enrichment | Plaintiffs paid for SPF; defendants retained benefit despite harm | Defendants: unjust enrichment improper if contract exists; also argue plaintiffs didn't confer direct benefit on Barnhardt | Court: pleading in the alternative permitted; Complaint alleges defendants received payments; unjust enrichment claim survives |
| UTPCPL (Pennsylvania consumer protection statute) — reliance, privity, Rule 9(b) | Defendants marketed SPF as safe/green; plaintiffs relied and were damaged; manufacturer liability despite indirect sale | Defendants: plaintiffs lack justifiable reliance; no privity with Barnhardt; claims sound in fraud so Rule 9(b) applies | Court: plaintiffs adequately alleged justifiable reliance; Valley Forge doctrine allows manufacturer liability absent direct privity; UTPCPL "catch‑all" deceptive conduct claims need not meet Rule 9(b); UTPCPL claim survives |
| Medical monitoring | Plaintiffs seek monitoring (air monitoring) for latent disease risk | Defendants: plaintiffs allege actual injuries (so medical monitoring inappropriate); pleadings lack necessary elements and identification of a specific latent disease and medical regimen | Court: plaintiffs may plead alternative/consistent claims, but medical monitoring claim fails for lack of specific latent disease and a medical monitoring regimen distinct from environmental/air testing; claim dismissed without prejudice |
| Injunctive/equitable relief (separately pled) | Plaintiffs seek recall, remediation, cease false marketing, public campaign | Defendants: separately pled injunctive relief is not a standalone cause of action | Court: separately pleaded injunctive claim dismissed (injunction is a remedy, not independent claim); injunctive relief still available in the prayer for relief |
Key Cases Cited
- Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) (pleading standard guidance)
- Victaulic Co. v. Tieman, 499 F.3d 227 (3d Cir. 2007) (Twombly plausibility standard applied)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard and inference limits)
- Kaufman v. Allstate New Jersey Ins. Co., 561 F.3d 144 (3d Cir. 2009) (party asserting CAFA exception bears burden)
- Webb v. Zern, 422 Pa. 424 (Pa. 1966) (adoption of Restatement Second for products liability)
- Berner v. Simplicity Mfg., Inc., 563 F.3d 38 (3d Cir. 2009) (predicting Pennsylvania may adopt Restatement Third)
- Tincher v. Omega Flex, Inc., 64 A.3d 626 (Pa. 2013) (Pennsylvania Supreme Court granted allocatur on Restatement issue)
- Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479 (Pa. 2004) (UTPCPL requires justifiable reliance)
- Toy v. Metropolitan Life Ins. Co., 593 Pa. 20 (Pa. 2007) (UTPCPL reliance requirement reaffirmed)
- Valley Forge Towers South Condo. v. Ron‑Ike Foam Insulators, Inc., 393 Pa.Super. 339 (Pa. Super. Ct. 1990) (manufacturer liability under UTPCPL despite lack of direct sale)
- In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829 (3d Cir. 1990) (medical monitoring damages and elements)
- Redland Soccer Club, Inc. v. Department of the Army, 548 Pa. 178 (Pa. 1997) (recognition and contours of medical monitoring in Pennsylvania)