MEMORANDUM-DECISION AND ORDER
1. INTRODUCTION
This case stems from the contamination of groundwater in the Village of Hoosick Falls with perfluorooctanoic acid, or PFOA. ⅛ Dkt. No. 9 (“Complaint”) ¶ 1. While many suits concerning this contamination have been filed in this district, this case is a consolidated class action whose putative classes include all individual owners or renters of real property within the Village, as well as anyone who consumed water from Hoosick Falls and exhibits a heightened blood-serum level of PFOA. Id. ¶ 135.
In the Complaint, Plaintiffs allege that Defendants—Saint-Gobain Performance Plastics Corp and Honeywell International Inc.—were responsible for this contamination, which came from one or more manufacturing facilities they operated at various times within the Village. Id. ¶¶ 60-86. Because of this groundwater contamination, Plaintiffs claim that the drinking water of Hoosick Falls became nonpotable,
II. BACKGROUND
The following facts are taken from the allegations in the Complaint, which are assumed to be true when deciding a motion to dismiss for failure to state a claim. E.g., Bryant v. N.Y. State Dept. of Educ.,
A. PFOA
“PFOA is a fluorinated organic chemical” originally manufactured by the 3M Company. Compl. ¶¶ 33, 35. Among other things, PFOA is used “to achieve water, oil, and grease repellency,” and thus has been used to manufacture “carpets, clothing, fabric for furniture, paper packaging for food and other materials such as cookware that are resistant to water, grease or stains.” Id. ¶¶ 37-38. Perhaps most notably, “PFOA was also a key component in the manufacturing of Teflon”—or PTFE— a material used as a nonstick coating and in several other applications. Id. ¶ 39; What Is Teflon?, Chemours, https://www. chemours.com/Teflon/en_US/products/ safety/what-is_it.html (last accessed Jan. 19, 2017).
“PFOA is biologically and chemically stable in the environment,” and can remain in soil and water for extended periods of time. Compl. ¶41. This is problematic, Plaintiffs allege, because of the toxic effects of exposure to PFOA. E.g., id. ¶ 43. “PFOA is readily absorbed after ingestion,” has a human biological half life of two to nine years, and causes health risks even at low levels of ingestion (less than one part per billion, or ppb). Id. ¶¶ 43-44. PFOA binds to serum albumin in the blood, id. ¶44, and nationwide blood concentrations average at 2.08 pg/L, id. ¶ 9.
Plaintiffs claim that “PFOA is associated with increased risk in humans” of various cancers, along with several other conditions. Id. ¶ 45. “[T]he EPA Science Advisory Board stated that PFOA cancer data are consistent with guidelines suggesting exposure to the chemical is ‘likely to be carcinogenic to humans,’ ” id. ¶ 46, and the Complaint also points to animal studies showing a connection with other cancers “not yet associated with human exposure,” ⅛¶45.
Plaintiffs cite no studies and make no allegations concerning the dose dependency of these conditions or the threshold levels of exposure associated with them, but do note that the U.S. Environmental Protection Agency (“EPA”) recently issued both a health advisory for drinking water of seventy parts per trillion (or ppt)
B. The Contamination of Hoosick Falls
The Village of Hoosick Falls is located in upstate New York near the Vermont border and has a population of approximately 3,500. Id, ¶ 55. Since as early as the late 1950s, PFOA has been used in manufacturing facilities in and around Hoosick Falls. Id. ¶ 60. One of these facilities—a small factory at 14 McCaffrey Street—appears to be the main source of the Village’s PFOA contamination. Id. ¶ 61. Through various acquisitions, the McCaffrey Street site came to be owned by AUiedSignal in 1986, which later adopted Honeywell’s name after a merger. Id. ¶¶ 62-64. In 1996, Honeywell sold the site to another company called Furon, but Saint-Gobain acquired Furon in 1999 and continues to own the facility to this day. Id. ¶¶ 65-67.
At the McCaffrey Street site, Saint-Go-bain and Honeywell manufactured stain— and water-resistant fabric, applying a PFOA solution to the fabric in large trays. Id. ¶¶ 68-70. As the fabrics dried, some of the PFOA would - vaporize and leave the site by air as particulate matter. Id ¶ 71. Employees would also wash the trays and pour the resulting discharge down floor drains in the facility. Id. ¶ 72. This in turn would cause PFOA to flow into the soil and ultimately the aquifer. Id.
Saint-Gobain and Honeywell also used solid PFOA to manufacture Teflon-coated materials and other products in large ovens at the McCaffrey Street site. Id. ¶¶ 76-77. As part of the coating process, a sticky residue containing PFOA would adhere to internal tubing or “stacks” within the ovens, which would be cleaned on a rotating schedule. Id. ¶¶ 78-79. These stacks were cleaned in a large sink, the waste water from which was discharged down a drain, ultimately migrating into the soil and then the aquifer. Id. ¶ 80.
The Complaint identifies other sites in Hoosick Falls operated by one or both defendants at various times that may also have contributed to the PFOA contamination. Id. ¶¶ 81-84. Additionally, PFOA has been found in leachate emanating from the former municipal landfill, where Defendants allegedly sent waste containing PFOA. Id. ¶¶ 85,108.
Approximately 95% of Hoosick Falls residents receive drinking water from the municipal water system, which in turn gathers its water from a well. Id ¶¶ 57, 87. In 2007, a new well for the municipal system was constructed about five hundred yards from the McCaffrey Street site. Id. ¶¶ 87-88. Additionally, some residents of Hoosick Falls and the surrounding Town of Hoosick receive drinking water from private wells instead of the municipal supply. Id. ¶¶ 58-59.
Despite these test results, Village officials maintained that the water was safe to drink. Id. ¶ 95. In October 2015, the EPA Regional Administrator for New York learned of the test results, and in November, the EPA contacted the village and recommended the use of an alternative water source. Id. ¶¶ 96-97. Even then, the New York State Department of Health released a fact sheet the following month stating that “[h]eath effects are not expected to occur from normal use of the water,” and ‘Village officials further minimized the potential risk of PFOA.” Id. ¶¶ 98-99.
After learning of the Village’s laissez-faire response, the EPA repeated its recommendation on December 17, 2015. Id. ¶ 100. Shortly thereafter, Saint-Gobain began to provide free bottled water to Village residents on the municipal water system, and agreed to fund the installation of a filter system on the municipal supply. Id. ¶ 102. After some debate with Town and Village residents, the state agreed to provide testing of private wells. Id. ¶¶ 105-07.
On January 27, 2016, Governor Cuomo and other state officials announced that the McCaffrey Street facility would be classified as a state superfund site, and that PFOA would be classified as a hazardous substance. Id. ¶¶ 110-11. The following day, the EPA advised homeowners with private wells to use bottled water if their wells showed PFOA at concentrations greater than 100 ppt, or if their wells had not yet been tested. Id. ¶ 112.
Around this time, municipal and state officials began remediation efforts both for municipal and private well users. Id. ¶¶ 121, 123. A temporary carbon filter system was installed at the municipal water treatment plant, and a permanent filter was scheduled for later installation. Id. ¶ 121.
In February 2016, the Department of Health also began to offer blood testing to Hoosick Falls residents, and over 3,000
In addition to heightened blood levels of PFOA, the contamination has had collateral effects on homeowners in Hoosick Falls. As alleged in the Complaint, “[t]he presence of PFOA in the municipal water supply and the local aquifer immediately stigmatized the community and has adversely impacted ... property values.” Id. ¶ 7. These property values “experienced a significant decline since the presence of PFOA was disclosed,” which “persists to this day and is expected to continue.” Id, ¶ 115. Hoosick Falls residents have also faced difficulty obtaining financing for their homes, as banks would not write mortgages for homes on the municipal water supply, and would not do so for homes with private wells unless testing revealed low levels of PFOA. Id. ¶¶ 113-14.
C. Plaintiffs’ Injuries
There are two main sources of harm to the named plaintiffs alleged in the Complaint: damage to the Plaintiffs’ property and personal injury from their ingestion of PFOA.
1. Property Damage
As a part of the injury alleged for Plaintiffs’ negligence and strict liability claims, id. ¶¶ 164, 166, 184, and as the sole source of injury for their nuisance and trespass claims, id. ¶¶ 170, 172, 178, Plaintiffs claim that the PFOA pollution caused harm to real property they either own or rent. Throughout the Complaint, the uniform source of this harm is the contamination of the drinking water in Hoosick Falls, either through the municipal water supply or through private wells on their land. E.g., id. ¶¶ 163-64, 169-70, 178, 182. Plaintiffs’ alleged damages include the cost to remed-iate the contamination of their property, the loss of their use and enjoyment of the property, and a loss in their quality of life. Id. ¶ 186; see also id. ¶ 166 (alleging “damages associated with the investigation, treatment, remediation, and monitoring of drinking water and the contamination of [Plaintiffs’] property,” among other sources of injury).
Also relevant in deciding the Motion is the distinction between plaintiffs who use the municipal water supply from the Village and those who own private wells. For example, the Complaint asserts trespass claims only on behalf of those with private wells. See id. ¶ 174 (“This Claim is brought ... on behalf of the Private Well Water Property Damage Class.”). For ease of reference, the named plaintiffs on the municipal water supply are Pamela Forrest, Michael Hickey (individually and on behalf of his child, O.H.), Kathleen Main-Lingener, Kristin Miller (on behalf of her child, K.M.), James Morier, Jennifer Plouffe, Silvia Potter (individually and on behalf of her child, K.P.), and Daniel Schuttig (collectively, the “Municipal Water Plaintiffs”), and the named plaintiffs with private wells are Michele Baker, Charles Carr, and Angela Corbett (collectively, the “Private Well Plaintiffs”). Id. ¶¶ 10-20.
2. Personal Injury
Plaintiffs also seek relief stemming from their consumption of the PFOA-contami-nated water. According to the Complaint, the residents of Hoosick Falls “have been exposed for years, if not decades, to PFOA at concentrations well above a safe drinking level,” an exposure that resulted in “concentrations of PFOA in their blood that is, on average, over 30 times higher than the typical American.” Id. ¶ 9. Plaintiffs combine this allegation with claims that PFOA is associated with increased risk of several cancers and other diseases, noting advised limits on PFOA exposure established by regulators. Id. ¶¶ 45-53. They also claim that this exposure causes them “to suffer injury and damage at the cellular and genetic level by the accumulation of PFOA in their bodies.” Id. ¶ 165. In response to this risk, Plaintiffs seek consequential damages and injunctive relief to either fund or provide “a biomonitoring program that is reasonably tailored to the exposure risks posed by PFOA.” Id. ¶¶ 187, 189.
D. Defendants’ Motion
After the consolidated complaint was filed in this action, Saint-Gobain and Honeywell moved to dismiss the Complaint for failure to state a claim. Mot.
First, Defendants argue that all of Plaintiffs’ property damage claims are based on injury to groundwater, but because groundwater in New York is “a public resource held by the State for the benefit of the public,” Plaintiffs lack standing to sue and cannot claim a cognizable injury to their own property. Id. at 31-32. Additionally, Defendants argue that claims for economic injury alone—here, a loss in property value—are not allowed under New York law. Id. at 32-35. Finally, Defendants argue that Plaintiffs’ nuisance claims fail as a matter of law because the injury alleged is common across thousands of people, yet a private nuisance must “threaten[ ] one person or a relatively few.” Id. at 35-36 (emphasis omitted) (quoting Caldarola v. Town of Smithtown, No. 09-CV-272,
Next, Defendants argue that Plaintiffs’ personal injury claims essentially assert a separate cause of action for medical monitoring, a claim that has been expressly forbidden by the New York Court of Appeals. Id. at 36-38 (citing Caronia,
III. LEGAL STANDARD
To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal,
IV. DISCUSSION
A. Negligence and Strict Liability
Plaintiffs’ first enumerated claim is negligence. In support of this claim, they argue that Honeywell and Saint-Gobain knew or should have known that PFOA “was potentially hazardous to human health,” that Defendants’ method of disposal caused it to enter the environment and ultimately Plaintiffs’ water supply, and that such actions together were unreasonable and negligent. Compl. ¶¶ 154-63. As an alternative theory, Plaintiffs argue that Defendants’ manufacture and handling of PFOA constituted an abnormally dangerous activity, and thus that Honeywell and Saint-Gobain may instead be held strictly liable, Id. ¶¶ 179-84.
The familiar elements of negligence under New York law are duty, breach, causation, and damages. E.g., Aegis Ins. Servs., Inc. v. 7 World Trade Co., 737 F.3d
Under Defendants’ view, the only substantive allegations in the Complaint concerning contamination refer to the pollution of the Village’s groundwater. Id. at 31. While this groundwater constituted the source of Plaintiffs’ drinking water (either through the municipal water supply or private wells), Plaintiffs themselves cannot be said to own this groundwater. Id. at 31-32. Thus, because what was injured—the aquifer—is not owned by the Plaintiffs, they did not suffer an injury sufficient to raise a negligence claim, which Defendants argue requires a physical injury to their property. Id. at 31-35.
In support of this view, Defendants point to Ivory v. International Business Machines Corp.,
There are two important differences between Ivory and this case. First, the quote from Ivory relied on by Defendants concerned a trespass claim, and not a negligence claim. Id.
Arguing that Plaintiffs do not present such an injury, Defendants point to the Court of Appeals’ decision in 532 Madison Avenue Gourmet Foods, Inc v. Finlandia Center, Inc.,
532 Madison did not, however, announce a talismanic requirement for plaintiffs to allege physical injury to their property (with courts left to determine what constitutes a physical injury). Instead, the decision concerned the existence of a legal duty between the plaintiffs and defendants. Id.
' The Court of Appeals has repeatedly described how courts should determine the extent of this duty:
The existence and scope of a tortfeasor’s duty is, of course, a legal question for the courts, which “fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.”
Id.
However a party’s duty is ultimately defined in pollution cases, this policy determination must include a duty not to pollute a plaintiff’s drinking water. Society has a reasonable expectation that manufacturers avoid contaminating the surrounding environment, an expectation that extends to the pollution of an area’s water supply. See, e.g., In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig.,
In fact, several courts applying New York law have found that loss-of-value damages constitute a sufficient injury in contamination suits when the plaintiffs property is directly affected by the defendant’s conduct. As noted by the Southern District of New York, “ ‘stigma damages’ have been recognized as a valid category of damages by the New York courts in environmental cases.” 87th Street Owners Corp. v. Carnegie Hill-87th Street Corp.,
Here, where Plaintiffs allege that the water supply for their property has been contaminated by the acts of Defendants and that the contaminant in question causes negative health consequences, the stigma causing a decline in Plaintiffs’ property values is directly traceable to Defendants’ conduct. Furthermore, 532 Madison was not a contamination or toxic tort case, and reading it—as Defendants’ do—as foreclosing such recovery in contamination suits would upend the New York courts’ past holdings in those cases.
Finally, the nonstigmatic injuries claimed by Plaintiffs provide an independent reason why Plaintiffs’ negligence claims survive even under Defendants’ interpretations of Ivory and 532 Madison. The root injury complained of by Plaintiffs is the loss of their potable water supply, see, e.g., Compl. ¶ 164 (“These unsafe levels of PFOA have deprived and continue to deprive Plaintiffs and the classes of potable water....”), an injury that is not fairly categorized as purely economic in nature.. Plaintiffs allege a reduction in property values due to this injury, ⅛, but they also seek compensatory damages for the cost of remediating the contamination to their property and restoring a long-term potable water supply, e.g., id. ¶ 186. While some or all of these damages might later be mitigated by Defendants’ outside remediation efforts, see id. ¶ 125 (discussing Defendants’ consent decree with the DEC), Plaintiffs certainly have not pleaded themselves out of court with respect to this issue. Accordingly, Plaintiffs’ claims for negligence and strict liability based on property damage survive Defendants’ Motion.
In addition to Plaintiffs’ negligence and strict liability claims, the Complaint also alleges a cause of action for trespass on behalf of the Private Well Plaintiffs. Compl. ¶¶ 173-78. Defendants’ argument in regard to the trespass claims is fundamentally the same as their argument on the negligence and strict liability front: Plaintiffs’ property was not injured by the PFOA contamination. Mem. at 33. Defendants rely on Ivory, which again held that “groundwater does not belong to the owners of real property, but is a natural resource entrusted to the state by and for its citizens,” and thus cannot form the basis of a private trespass claim.
Defendants are correct that “[p]os-session is an essential element of a trespass action.” Mem. at 33 (quoting Niagara Falls Redevelopment, LLC v. Cerrone,
Defendants’ reference to Ivory and the theory that groundwater is not private property sufficient to sustain a trespass claim does not undo this conclusion, since the groundwater in this case was simply the medium through which the Private Well Plaintiffs’ property was invaded; the property in question is in fact the well. See Phillips,
C. Nuisance
Defendants’ argument fares better when it comes to private nuisance. Instead of suggesting that Plaintiffs did not suffer an injury, they argue that the injury alleged was too widespread to constitute a private nuisance. Mem. at 35-36. This is because private nuisance is limited to “that which ‘threatens one person or a relatively few.’ ” Id. at 36 (emphasis omitted) (quoting Caldarola,
Under New York law, a private nuisance—“actionable by the individual person or persons whose rights have been
When the injury in question “is ‘so general and widespread as to affect a whole community, or a very wide area within it, the line is drawn’ ” and a private nuisance is precluded. 532 Madison,
But there is an exception to this private-public divide. Even a public nuisance can permit a private suit for damages when an individual or smaller group “sustains a special loss” that is different in kind from the harm suffered by the rest of the community. 532 Madison,
In this case, the Municipal Water Plaintiffs cannot state a claim for private nuisance, and they have not suffered a unique wrong compared to the rest of the community sufficient to sustain a private action for an otherwise public nuisance. As the Complaint alleges, “[t]he Village’s municipal water system has approximately 1,300 service connections” and “provides water to nearly 95 percent of the Village’s residents.” Compl. ¶ 57. This widespread injury clearly fits the definition of public nuisance, and the kind of harm suffered is common among the thousands of residents connected to the municipal water supply.
On the other hand, the Private Well Plaintiffs have suffered “a special loss” sufficient to maintain a nuisance action. 532 Madison,
The Appellate Division’s decision in Baity v. General Electric Co.,
[I]t is well settled that the seepage of chemical wastes into a public water supply constitutes a public nuisance. Nevertheless, “[a] public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large.” We conclude that defendant failed to meet its burden of establishing that the contamination of plaintiffs’ private water wells did not constitute a special injury beyond that suffered by the public at large.
Id. at 495-96 (second alteration in original) (citations omitted) (quoting 532 Madison,
While the Municipal Water Plaintiffs’ injuries are common to the community (or a substantial portion of it) so as to preclude private recovery under a nuisance theory, the Private Well Plaintiffs allege a special harm that sufficiently differs from that suffered by the rest of the area’s population. Thus, the nuisance claims of the Municipal Water Plaintiffs are dismissed, but the Private Well Plaintiffs’ nuisance claims survive Defendants’ Motion.
D. Medical Monitoring
The last argument in Defendants’ Motion concerns the availability of medical monitoring damages. Plaintiffs claim that they ingested PFOA-laced water as a result of the contamination, and several of them (the Accumulation Plaintiffs) have elevated levels of PFOA in their blood. Compl. ¶¶ 10-20. Because PFOA is associated with an increased risk of cancer and other diseases, e.g., id. ¶ 45, Plaintiffs seek funding for “a biomonitoring program that is reasonably tailored to the exposure risks posed by PFOA,” id. ¶ 187; see also id. ¶ 189 (outlining Plaintiffs’ demand for in-junctive relief mandating the creation of a medical monitoring program to “diagnose at an early stage any ailments associated with exposure, inhalation or ingestion of PFOA”).
Importantly, Defendants do not argue in their Motion that sufficient exposure to and accumulation of PFOA do not cause adverse health effects (or, more accurately, that Plaintiffs did not plausibly allege such effects). See, e.g., Hill v. City of New York,
Defendants interpret Caronia as foreclosing medical monitoring damages absent a present physical injury, and they define physical injury as the manifestation of symptoms or disease. Mem. at 38. Thus, because Plaintiffs do not allege any present symptoms, they cannot state an independent tort—a requirement for medical monitoring damages under New York law.
Defendants’ view is incorrect for two reasons. First, under case law cited favorably by Caronia, a plaintiff may' show an injury sufficient to seek medical monitoring damages through the accumulation of a toxic substance within her body. Second, Caronia appears to allow medical monitoring damages even if the only tort with a present “injury” involves harm to property, which, as discussed above, Plaintiffs have sufficiently alleged. Defendants’ request to dismiss the claims for medical monitoring damages must therefore be denied.
. 1. Availability of Medical Monitoring Damages
As used in this opinion, medical monitoring refers to a remedy granted after exposure to a toxic substance that provides testing used for early detection of the signs of disease, which in turn allows for earlier and more effective treatment. E.g., Abbatiello,
The history of medical monitoring cases in New York is discussed more extensively in Abbatiello v. Monsanto Co.,
All this sets the stage for Caronia v. Philip Morris USA, Inc., a cigarette case first filed in 2006. No. 06-CV-224,
Through an appeal and subsequent certification, the case found its way to the New York Court of Appeals, which was tasked with determining whether New York law recognizes “an independent equitable cause of action for medical monitoring.”
In arriving at this conclusion, Caronia embraced the Appellate Division cases discussed above, noting that they “consistently found that medical monitoring is an element of damages that may be recovered only after a physical injury has been proven, i.e., that it is a form of remedy for an existing tort.” Id.
But Caronia did not upend the definition of injury espoused by Abusio and seemingly championed in its own text. See Stephen J. Riccardulli et al., A Need for Additional Clarity in Medical Monitoring, N.Y. L.J., May 23, 2016, at S2 (“The [Caronia] court, however, did not define what constitutes such a ‘present physical injury’ in toxic exposure cases....”). Instead, the Caronia court quoted Abusio’s language that accumulation coupled with a rational fear of contracting diséase was an injury sufficient to receive medical monitoring damages, and noted the Appellate Divisions’ use of “the test enunciated in Abusio” as further support for its decision.
Indeed, the Second Circuit, albeit in dictum, endorsed the continued viability of Abusio’s standard for medical m.onitoring damages before the manifestation of symptoms. Under the circuit’s interpretation of Caronia, while “[mjedical monitoring is not an independent cause of action under New York law,” a plaintiff may still “establish entitlement to damages for fear of cancer” by “showpng] a ‘ “rational basis” for [the] fear[,] ... i.e., ... a “clinically demonstrable presence of toxins in the plaintiffs body, or some indication of toxin-induced disease, i.e., some physical manifestation of toxin contamination.” ’ ” In re World Trade Ctr. Lower Manhattan Disaster Site Litig.,
While Defendants categorize this accumulation as exposure without injury, e.g., Reply at 15, this view of the law promotes an absurdity: requiring plaintiffs to manifest physical symptoms before receiving medical monitoring would defeat the purpose of that remedy. The entire point of medical monitoring is to provide testing that would detect a patient’s disease before she manifests an obvious symptomatic illness, thus allowing earlier treatment that carries a better chance of success. Abbatiello,
Finally, even if the accumulation of PFOA in the blood were not enough to constitute an injury within a preexisting tort, Caronia also allows plaintiffs to seek medical monitoring as consequential damages for a tort alleging injury to property. In that case, the Court of Appeals repeatedly said medical monitoring damages require either “physical injury or damage to property” that amounts to some “already existing tort cause of action.” Caronia,
2. Clarifying Caronia
While the Court’s reading of Caronia in light of Abusio may open the door to recovery in this case, it is worth noting the potential difficulties of applying Caronia in other settings. This stems from Caronia’s apparent holding that the need for medical monitoring alone is not a legally cognizable injury,
As discussed above, Caronia allows a plaintiff to seek medical monitoring damages even when the only present tort alleged involves damage to property.
More significantly, among plaintiffs who have suffered exposure and for whom medical monitoring could improve their prognoses, Caronia bases the availability of medical monitoring on whether they suffered some separate injury to property. If instead of the water supply of her home, a plaintiff consumed a toxic chemical through the water source of a third-party (such as a restaurant), she would lack the damage to property seemingly required by Caronia. Thus, unless this plaintiff also could show bodily accumulation of the offending compound, her suit would be dis
Even the accumulation-nonaccumulation dichotomy adds potential complication (though certainly less so than basing the availability of medical testing on whether there was an injury to property). Consider two substances, both of which, through exposure, cause the same increased risk of a disease that can be successfully treated if detected before symptoms become outwardly apparent. One of these has a lengthy biological half-life and accumulates in the blood. The other is rapidly excreted, though its ingestion causes the same exact damage as the accumulating compound. Under Caronia (and in the absence of property damage), it seems that only exposure to the first substance would permit recovery of medical monitoring costs, even though both the harm incurred and the benefits of the remedy are the same in both examples.
The potential for arbitrary outcomes and the denial of medically indicated testing invites further clarification of Caronia. The foundation of that decision’s holding is that the award of medical monitoring damages requires “an already existing tort cause of action.”
This understanding of injury hinges upon the existence of a dilemma like the one discussed above, but it is hard to see the benefit of medical monitoring outside of such a context. In contrast, damage to property alone—though certainly a tort, and apparently enough to satisfy Caronia’s requirements—cannot be enough to warrant this remedy. Thus, a better view of the present injury requirement is one that is independent of accumulation or property damage, instead turning on whether, because of the defendant’s actions, the monitoring requested is medically indicated in the plaintiffs situation. See Allen T. Sla-gel, Note, Medical Surveillance Damages: A Solution to the Inadequate Compensation of Toxic Tort Victims, 63 Ind. L.J. 849, 872 (1987) .(“In order to recover medical surveillance damages, the plaintiff must prove ... exposure to a hazardous substance[,] ... [a]s a proximate result of exposure an increased risk of manifesting a serious latent disease requiring her to undergo medical surveillance examinations!;,] • • • [and] [t]he existence of a medical test which [makes] early detection of the latent diseases possible and a treatment which can alter the natural history of the disease.”); id. at 863 (“The test for the compensability of medical surveillance expenses is whether future testing is necessary to detect the early warning signs of latent ailments.”).
Later in this decision, the Court permits the parties to take an interlocutory appeal from the questions of law decided today. The Second Circuit may in turn choose to certify these issues of state law to the New York Court of Appeals. If this comes to pass, either now or on a later appeal, the Court of Appeals could assist the lower courts by clarifying Caronia and rooting its present-injury requirement in the potential
3. Proof of Damages
Finally, it is worth noting that this decision does not determine what Plaintiffs must prove at trial to receive consequential medical monitoring damages. The Court of Appeals’ decision in Caronia did not address this question, but the district court—in articulating the elements of its proposed but ultimately reversed medical monitoring claim—found that an award of these damages requires the availability of a monitoring procedure “that makes early detection possible” and is different from the normal preventive care prescribed in the absence of exposure, and that this monitoring program be “reasonably necessary according to contemporary scientific principles.”
The costs of medical monitoring may not be imposed on a defendant at the expense of good medicine, but there is no doubt that medical monitoring damages can be obtained in some cases—this was expressly stated in Caronia.
E. Interlocutory Appeal
While not raised by either party, 28 U.S.C. § 1292 allows the district court, when issuing an otherwise unappealable
The requirements of § 1292 are met in this case. As discussed above, Defendants’ Motion raises several complex and novel issues of New York law as to which the existing case law is significantly muddled. When a denial of a motion to dismiss (or, as in this case, a grant in part and denial in part) “ ‘involves a new legal question or is of special consequence,’ then the district court ‘should not hesitate to certify an interlocutory appeal.’ ” Balintulo v. Daimler AG,
In this case, where the question of which claims are viable under New York law could significantly impact the classes to be certified, the scope and focus of discovery, any subsequent motion for summary judgment, and the issues to be presented at trial, an early resolution of the applicable law could significantly improve the efficiency of this litigation and reduce its cost for both Defendants and the putative classes. Furthermore, an interlocutory appeal could benefit either or both parties, since both sides incurred a partially adverse decision through this Memorandum-Decision and Order.
Therefore, the Court certifies this order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Any party seeking to appeal pursuant to this certification must apply to the Second Circuit for leave to appeal within ten (10) days of the filing date of this Memorandum-Decision and Order, and any such appeal will not delay proceedings in this Court absent a stay granted by the circuit. § 1292(b).
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion (Dkt. No. 13) is GRANTED IN PART and DENIED IN PART; and it is further
ORDERED, that the Municipal Water Plaintiffs’ nuisance claims are DISMISSED; and it is further
ORDERED, that Plaintiffs’ negligence and strict liability claims related to property, the Private Well Plaintiffs’ trespass and nuisance claims, and Plaintiffs’ negligence and strict liability claims related to PFOA ingestion survive Defendants’ Motion; and it is further
ORDERED, that the questions of law decided in this Memorandum-Decision and Order are certified for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and any
ORDERED, that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties pursuant to the Local Rules.
IT IS SO ORDERED.
Notes
. Because class certification is not at issue in this Memorandum-Decision and Order, the Court has summarized these classes for brevity. The full proposed class definitions, and other class-related allegations, can be found in the Complaint. Compl. ¶¶ 134-53.
. As discussed further below, Defendants, the Village, and state and federal agencies have been working to address the contamination. These efforts include the installation of filtration systems on both the municipal water supply and on private wells. Compl. ¶¶ 121, 123.
. While Defendants also moved to dismiss or to stay Plaintiffs’ claims for injunctive relief pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act and the primary jurisdiction doctrine, Mem. at 14-30, these claims were stayed until April 28, 2017, by a stipulation and order, Dkt. No. 18.
. This may also be expressed as approximately 70 ng/L.
. The reference dose, or RfD, is calculated by taking the estimated "no observed adverse effect level” or NOAEL of the substance—"the 'highest tested dose at which no statistically significant elevation over background in the incidence of the adverse effect was observed’ "—and dividing it by one or several factors of ten to account for uncertainty. Matthew D. Adler, Against "Individual Risk”: A Sympathetic Critique of Risk Assessment, 153 U. Pa. L. Rev. 1121, 1161-62 (2005) (quoting Lorenz R. Rhomberg, A Survey of Methods for Chemical Health Risk Assessment Among Federal Regulatory Agencies, 3 Hum. & Ecological Risk Assessment 1029, 1105 (1997)). This means that doses equal to and lower than the reference dose "do not (it can be said with great confidence) produce an incremental risk of death.” Id. at 1162.
. This warning came before the 70 ppt advisory was issued in May 2016. Compl. ¶ 53.
. Plaintiffs claim that despite' the installation of this filter system, “residents continue to rely on bottled water for drinking.” Compl. ¶ 121. But cf. New York State Announces Water from Village of Hoosick Falls Municipal Water System Is Safe to Drink, Village Hoosick Falls (Mar. 30, 2016), http://www. villageofhoosickfalls.com/Water/news.html (noting that water "show[ed] non-detectable levels of PFOA” after passing through the temporary filtration system).
. According to the Complaint, an employee of Trasteo Bank “indicated that lenders typically require that homes have access to potable water before financing is approved.” Compl. ¶ 113.
. As noted in Defendants’ brief, Mem. at 14, “[t]he fact that the Plaintiff has asserted a putative class action does not affect the Court's analysis of the validity of the named Plaintiff’s claims,” DiGangi v. Gov't Emp'rs. Ins. Co., No. 13-CV-5627,
. Medical monitoring or biomonitoring is the provision of “regular medical testing ... intended to detect the onset of latent injuries or diseases and to facilitate early diagnosis and treatment.” Abbatiello v. Monsanto Co.,
. Again, Plaintiffs’ claims for injunctive relief have been stayed under a stipulation and order. Dkt. No. 18. The Court accordingly delays decision on the propriety of and its jurisdiction over those claims in light of the ongoing regulatory and remediation efforts in Hoosick Falls. See id. at 1 (noting the "ongoing efforts by state and federal agencies in cooperation with Defendants”).
. Defendants do not argue in the Motion that their alleged activities were not abnormally dangerous, Mem., a question left for later resolution in this case. Accordingly, while the discussion here is primarily phrased in terms of negligence, these issues are applicable to both theories of liability.
. Plaintiffs’ claimed personal injury damages—namely, the cost of medical monitoring, Compl. ¶¶ 187, 189—are discussed later in this opinion.
. Ivory in fact upheld the plaintiffs' negligence claims, but it is unclear what role—-if any—the groundwater issue had in this.
. Insofar as Ivory turns on whether the injury to property constitutes damage, see
. By "need,” the Court means that the requested monitoring is medically indicated.
. See also Fed. R. App. P. 5 (providing rules governing petitions for permission to appeal).