Town of Westport v. Monsanto Co., 877 F.3d 58

Background

Westport sued Monsanto (and affiliates) under Massachusetts law seeking remediation costs after PCBs were discovered in Westport Middle School caulk installed in 1969; Monsanto supplied Aroclor PCB plasticizers to the caulk formulator (PRC) but did not make the caulk.
Monsanto sold Aroclors from the 1930s until withdrawal in 1970, and issued technical bulletins warning of toxicity and environmental hazards to its direct customers (not end users); Monsanto studied volatilization from paints but not from caulk.
Early studies (1950s) suggested negligible volatilization at ordinary temperatures for Aroclors in general, but Monsanto’s 1952–55 paint studies showed elevated indoor air PCB levels from latex paints for up to a month, prompting warnings against certain indoor paint uses.
No scientific studies (as of the record) establish that PCBs volatilize from caulk at concentrations hazardous to human health; Westport’s experts conceded the lack of such literature.
District court granted summary judgment to defendants on all counts; on appeal Westport challenges only breach of implied warranty (failure to warn) and negligent marketing; the First Circuit affirmed summary judgment for defendants.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Monsanto breached implied warranty by failing to warn of PCB volatilization from caulk when sold in 1969	It was foreseeable in 1969 that PCBs would volatilize from caulk (property damage claim) because PCBs were known to volatilize from paints and cause health effects	Foreseeability requires that PCBs could volatilize from caulk at levels harmful to human health; no evidence in 1969 (or today) showed harmful volatilization from caulk	No breach: risk of harmful volatilization from caulk was not reasonably foreseeable in 1969; summary judgment affirmed
Whether post-sale duty-to-warn imposed liability to identifiable end users (post-sale warning)	Monsanto could have identified PRC and thus trace the caulk to WMS; therefore an identifiable end user existed	Monsanto could not reasonably identify WMS as an end user from its customer list and supply chain complexity	No post-sale duty to WMS: WMS was not an identifiable end user; summary judgment affirmed
Whether negligent marketing is actionable independent of a design defect	Marketing claims can stand alone to recover for property contamination	Massachusetts law does not recognize negligent marketing independent of a design defect absent special circumstances (e.g., intentional targeting of children)	Negligent marketing fails: no design-defect claim prevailed and Aroclors were not marketed to induce purchases by children; claim dismissed
Whether PCB contamination amounts to compensable property damage absent risk to human health	Property damage can be established without reference to health risk per se	Property damage requiring remediation must reflect contamination levels that pose a health risk or reduce property value; invisible contaminants like PCBs warrant remediation only if hazardous	Court: remediation (and thus property damage) requires contamination at levels posing a health risk; no such foreseeable risk shown in 1969

Key Cases Cited

Evans v. Lorillard Tobacco Co., 990 N.E.2d 997 (Mass. 2013) (defining merchantability/warning duty; foreseeability standard)
Vassallo v. Baxter Healthcare Corp., 696 N.E.2d 909 (Mass. 1998) (duty to warn includes discoverable risks before marketing)
Lewis v. Ariens Co., 751 N.E.2d 862 (Mass. 2001) (elements for post-sale duty-to-warn claim)
Guaranty-First Trust Co. v. Textron, 622 N.E.2d 597 (Mass. 1993) (measure of property damage: diminution in market value or repair costs)
Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067 (Mass. 1989) (failure-to-warn doctrine in media context; not a negligent-marketing decision)
Pina v. Children's Place, 740 F.3d 785 (1st Cir. 2014) (summary judgment limits: no conjecture in place of competent evidence)