133 F. Supp. 3d 258
D. Mass.2015Background
- Lexington sued Pharmacia (and co-defendants) seeking remediation costs after testing revealed PCBs in caulk and elevated airborne PCB levels at Estabrook Elementary School. PCBs were banned in 1979.
- Lexington alleges Pharmacia (a dominant domestic PCB supplier) supplied the PCBs that ended up in the school’s caulk; direct proof tying Pharmacia to the specific caulk is lacking.
- EPA issued indoor-air guidance for PCBs in schools in September 2009; relevant PCB air-testing methods were developed in the 1980s.
- Lexington asserts breach of implied warranty of merchantability (design defect and failure to warn) and a Mass. Gen. L. c. 93A claim; Pharmacia moved for summary judgment.
- Key factual disputes concerned: (1) whether Pharmacia manufactured the particular PCBs; (2) when Lexington’s injury occurred for privity purposes; (3) whether PCBs were defectively designed or their risks foreseeable in 1961; and (4) whether Pharmacia had a continuing duty to warn or otherwise violated c. 93A.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Identification of PCB manufacturer | Pharmacia was the near-exclusive domestic source; market-share and expert probability support identification | No direct proof; caulk manufacturers chose formulations; global market share <40% | Jury question on identification exists, but outcome moot because other grounds dispose of case |
| Date of injury / Privity (pre- vs post-1973) | Injury occurred when airborne PCBs were discovered/tested (post-2009); discovery-rule analogy supports later injury date | Injury occurred upon installation (1960–61) because PCBs began volatilizing then | Court: Lexington not reasonably aware before 1973; injury could be deemed post-1973 (discovery-rule reasoning), so privity does not bar claim |
| Design defect (implied warranty) | PCBs are inherently dangerous (later banned); expert evidence about persistence/off-gassing suffices; alternative design proof not required where product is manifestly unreasonable | Plaintiff must show a specific defective design or a feasible safer alternative and that risks were foreseeable in 1961 | Court: Grant summary judgment for Pharmacia — plaintiff failed to offer expert proof that Pharmacia’s PCB design was defective or that the airborne risk was reasonably foreseeable in 1961; mere inherent danger / later ban insufficient |
| Failure to warn & Chapter 93A (continuing duty) | Pharmacia had an ongoing duty to warn of PCB risks discovered post-sale and thus violated c. 93A | No duty to warn for risks not reasonably foreseeable or discoverable at time of sale; Pharmacia could not identify or effectively warn end-users like Lexington | Court: Summary judgment for Pharmacia — airborne-PCB risk not reasonably foreseeable in 1961; no showing Pharmacia could identify Lexington or effectively communicate a post-sale warning; 93A claim derivative and fails |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment allocation of burdens)
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment — genuine dispute standard)
- Thayer v. Pittsburgh-Corning Corp., 45 Mass. App. Ct. 435 (privity and accrual in latent-injury context)
- Vassallo v. Baxter Healthcare Corp., 428 Mass. 1 (failure-to-warn standard — foreseeability/discoverability at time of sale)
- Lewis v. General Elec. Co., 254 F. Supp. 2d 205 (latent PCB/property-contamination injury and discovery-rule reasoning)
- Kotler v. American Tobacco Co., 926 F.2d 1217 (design-defect liability not based solely on inherent dangers of product)
- Evans v. Lorillard Tobacco Co., 465 Mass. 411 (requirement to show reasonable alternative design for implied-warranty design-defect claim)