Defendants Tyco Fire Products, Chemguard and 3M move to dismiss plaintiffs' medical monitoring claims, arguing that Colorado's appellate courts have not recognized such a cause of action. Tyco and Chemguard alternatively request that the issue be certified to the Colorado Supreme Court. Several other defendants ask to join one or both of the motions to dismiss. I decline to certify the issue to the Colorado Supreme Court, hold that Colorado's appellate courts probably would recognize such a claim, but nevertheless grant the motions to dismiss with leave to amend for reasons explained in this order. In this order, although not related to the medical monitoring claim as such, I also grant defendant 3M's motion to dismiss plaintiffs' civil conspiracy claim.
I. BACKGROUND
Plaintiffs, who reside in the communities of Fountain, Security, or Widefield, Colorado,
Original Complaints
The original plaintiffs -- Gregory Bell, Jose Acevedo and Denise Durbin - filed two cases September 18, 2016. In case No. 16-cv-2351-RBJ, filed on their own behalf and on behalf of a purported class of similarly situated individuals, they alleged that the contamination of their water has caused property-related damages. In case No. 16-cv-2352-PAB, also filed individually and on behalf of a purported class, plaintiffs sought the costs of medical monitoring which they claimed to be necessary for the early detection of illnesses caused by the contamination. In both cases they named The 3M Company, The Ansul Company and National Foam, manufacturers of AFFF, as defendants. Plaintiffs asserted claims of negligence, defective product/failure to warn, defective product/design defect and unjust enrichment. Plaintiffs' counsel in the first and second cases was Kevin S. Hannon of Denver.
A few days later a third case was filed, Davis v. The 3M Corp. , No. 16-cv-02394-RM. This was a class action filed on behalf of a group of nine individuals. Plaintiffs named the same three companies plus Angus Fire, Buckeye Fire Protection Co. and Chemguard as defendants. They purported to act on behalf of three classes: a "Municipal Water Bodily Injury Class;" a "Private Water Bodily Injury Class;" and a "Property Damage Class." They asserted claims of negligence, private nuisance, medical monitoring, products liability/failure to warn, products liability/defective design, and unjust enrichment. ECF No. 1. Plaintiffs' counsel were Napoli Shkolnik PLLC of New York and the McDivitt Law Firm of Colorado Springs.
All parties to the two Bell cases jointly filed a motion to consolidate the three cases for pre-trial proceeds. ECF No. 32. The Davis defendants who were also named in the Bell cases joined the motion, but the Davis defendants who were named only in Davis did not. The Davis plaintiffs opposed consolidation. The Court granted the motion to consolidate the three cases and directed the parties to file all further pleadings in 16-cv-2351. ECF No. 57.
There was also a dispute among counsel for appointment as "lead interim class counsel" between counsel for the Bell plaintiffs (Mr. Hannon) and counsel for the Davis plaintiffs (the Napoli Shkolnik and McDivitt law firms). During a Scheduling Conference held on August 24, 2017 the Court appointed none of the competing lawyers or law firms as lead plaintiff's counsel, instead selecting David Hersh of the Burg Simpson law firm of Denver who had, in the interim, appeared as additional counsel for the Davis plaintiffs, as lead counsel. See ECF No. 83 at 7-8.
First Amended Complaint
A First Amended Complaint was filed in the consolidated cases on September 22, 2017. ECF No. 88. Because this complaint has been superseded by a Second Amended Complaint, I won't dwell on it other than to note the plaintiffs listed in this version include none of the plaintiffs named in any of the original three complaints.
Second Amended Complaint
On December 8, 2017, though still under the caption of the original Bell case which lists Gregory Bell, Jose Acevedo and Denise
The defendants identified in the body of the Second Amended Complaint are The 3M Company; Tyco Fire Products L.P. (as successor to Ansul), Buckeye Fire Equipment Company, Chemguard, National Foam, Inc., Kidde Fire Fighting, Inc. (individually and as successor to National Foam, Inc.); Kidde PLC, Inc. (individually and as successor to National Foam); Williams Holdings, Inc. (individually and as successor to National Foam); Williams Holdings US, Inc.; Williams Corporation; Kidde-Fenwal, Inc. (individually and as successor to National Foam); UTC Fire & Security Americas Corporation, Inc.; and Enterra Corporation (individually and as successor to National Foam).
The Second Amended Complaint is presently the operative complaint in the consolidated cases. Plaintiffs assert class claims on behalf of a Medical Monitoring Class and a Property Damage Class. ECF No. 126 at ¶ 148. They also assert claims on behalf of themselves individually. Thirteen of the class representatives claim that they suffer from diseases ranging from pregnancy complications to kidney and thyroid disease which they attribute to the exposure to PFCs in their water. Id. at ¶¶ 50-64. These class representatives bring claims on behalf of the class as well as individual personal injury and property damage claims. Id. Three class representatives who do not presently suffer from such diseases bring only claims on behalf of the class and individual property damage claims. Id. at ¶¶ 65-67.
The Second Amended Complaint asserts five claims for relief: (1) negligence; (2) medical monitoring; (3) products liability for failure to warn; (4) products liability for defective design; and (5) civil conspiracy. Id. at 43-57. Plaintiffs seek to certify sub-classes, and they seek the following relief: a declaration that defendants acted with negligence, gross negligence, or reckless disregard for health, safety, and property; an order requiring defendants to implement a testing and monitoring protocol to test the plaintiffs' water; an order requiring defendants to implement a medical monitoring protocol; and an award of damages, attorneys' fees, costs, and post-judgment interest. Id. at 58.
Individual Actions
To complete the unusual procedural posture of this litigation I note that since the Second Amended Complaint was filed, and for reasons only they know for sure at this
The existence of the 41 individual plaintiffs' cases has obvious implications for the class action cases and vice-versa. However, other than completing my summary of the procedural history of the "3M cases" I need not otherwise resolve those issues today.
II. STANDARD OF REVIEW
In three orders issued today I am addressing all pending motions in the three cases consolidated under the Bell et al. v. The 3M Company caption other than the motion for class certification which is set for hearing on November 30, 2018. As noted above, the present order primarily addresses defendants' motions to dismiss plaintiffs' claim for funds to implement a program for "medical monitoring" in the affected communities.
To survive a 12(b)(6) motion to dismiss, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Ridge at Red Hawk, L.L.C. v. Schneider ,
3M's motion to dismiss plaintiffs' medical monitoring claim on the basis that plaintiffs lack standing to assert this claim is "properly determined pursuant to Rule 12(b)(1) because such argument attacks the Court's subject matter jurisdiction." Irvine v. I.C. System, Inc. ,
3M also moves to dismiss plaintiffs' civil conspiracy claim, which sounds in fraud, thereby invoking the standard under Fed. R. Civ. P. 9(b). A party pleading fraud "must state with particularity the circumstances constituting fraud." Fed. R. Civ. P. 9(b) ; see also In re Qwest Commc'ns Int'l, Inc. Sec. Litig. ,
Finally, pursuant to Rule 21.1 of Colorado Rules of Appellate Procedure, the Colorado Supreme Court may "answer a question of state law certified to it by a United States District Court if the question 'may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court
III. ANALYSIS
Plaintiffs assert a claim for medical monitoring under Colorado law on the grounds that they were exposed to PFCs due to defendants' actions. Plaintiffs contend that they are therefore at a higher risk of contracting a serious latent disease for which periodic medical testing is reasonably necessary, and that such testing exists, making the early detection of those diseases possible and beneficial. ECF No. 126 at 49. Plaintiffs assert, for example, that because of their exposure to PFCs, they are at an increased risk of developing "effects on the liver and immune system, high cholesterol levels, changes in thyroid hormone, and kidney cancer." Id. at 18. However, defendants dispute the validity of such a claim under Colorado law, asserting that Colorado courts do not recognize claims for medical monitoring absent a present physical injury. ECF No. 154 at 1; ECF No. 157 at 5.
Each of the three substantive motions before the Court turns at least in part on this question. In Tyco and Chemguard's motion to dismiss plaintiffs' medical monitoring claim, which is joined by National Foam, Kidde PLC, Kidde-Fenwal, UTC Fire, and Buckeye (collectively, "Tyco and Chemguard"), defendants contend that Colorado courts have never recognized such a claim. ECF No. 154 at 1; see also ECF Nos. 160, 219, 159. Similarly, in 3M's motion to dismiss plaintiffs' medical monitoring and conspiracy claims, which is joined by Buckeye, 3M asserts that Colorado courts do not recognize claims for medical monitoring where there is no physical injury. ECF No. 157; see also ECF No. 159. Finally, Tyco and Chemguard ask this Court to certify this question to the Colorado Supreme Court in the event that their motion to dismiss is denied. ECF No. 155.
Given that each of these motions turns on this central question of the status of medical monitoring claims in Colorado, I will address it first. I will then turn to the additional contentions defendants raise in their motions with respect to the medical monitoring claim, namely that plaintiffs lack standing to bring this claim and have failed to adequately plead all the elements of the claim. I will separately address 3M's contention that plaintiffs have failed to properly plead their claim of civil conspiracy.
A. Plaintiffs' Medical Monitoring Claim.
As defendants and plaintiffs acknowledge, the Colorado Supreme Court has not yet addressed the question at issue. Indeed, plaintiffs concede that "the Colorado Supreme Court has yet to explicitly address medical monitoring as a cause of action," and that there is "limited Colorado Supreme Court precedent" on the subject.
In cases arising under diversity jurisdiction, like this one (See ECF No. 126 at 11),
the Court's task is not to reach its own judgment regarding the substance of the common law, but simply to "ascertain and apply the state law." Where no controlling state law exists, the federal court must endeavor to predict what the state's highest court would do if it were faced with the same facts and issues. In making that prediction, a court considers "analogous decisions by the [state] Supreme Court, the decisions of the lower courts in [the state], the decisions of the federal courts and of other state courts."
Home Loan Inv. Co. v. St. Paul Mercury Ins. Co. ,
Thus, to decide how the Colorado Supreme Court might decide this question, I will assess Judge Babcock's reasoning in Cook and examine the developments in other courts throughout the country and in Colorado. As a threshold matter, however, I first address one apparent inconsistency in plaintiffs' complaint related to the nature of their injury. Although, as noted above, 13 class representatives have diseases which they attribute at least in part to their exposure to PFCs, the medical monitoring claim is not based on any present physical injury. Instead, plaintiffs with and without current health issues assert the medical monitoring claim only for potential latent maladies. ECF No. 126 at 50 (plaintiffs note that they "are at a seriously increased risk of contracting numerous medical conditions," and they contend that medical examinations are necessary "to detect latent diseases"). Indeed, as will be discussed herein, the central question in most medical monitoring cases is whether plaintiffs without current physical injuries can assert claims for monitoring.
However, there is also a small subset of cases from other jurisdictions in which "subclinical" changes, such as the bioaccumulation of toxins in blood or the breakdown of DNA, have been found to constitute present physical injury despite the absence of any clinical manifestation of the injury. See Baker v. St.-Gobain Performance Plastics Corp. ,
To the extent that plaintiffs attempt to assert that the bioaccumulation of toxins or subclinical damage constitute a present physical injury, I am not convinced. Plaintiffs have provided no indication that the Colorado courts recognize such a theory. Moreover, the Tenth Circuit has provided a persuasive guide as to how the Colorado Supreme Court might perceive this issue in June v. Union Carbide Corp. ,
1. Judge Babcock's Prediction in Cook.
As noted above, this question was last addressed in this district in a 1991 decision by Judge Babcock in Cook v. Rockwell Int'l Corp. ,
In concluding that the Colorado Supreme Court would likely recognize a medical monitoring claim, Judge Babcock summarized the "unique issues" implicated in cases alleging exposure to toxic substances under traditional common law tort theory, including that injuries resulting from such exposure are often latent.
Judge Babcock noted the difference between a claim for medical monitoring and a claim for enhanced risk of future disease: the latter seeks "compensation for the anticipated harm itself," whereas medical monitoring claims seek to recover "only the quantifiable costs of periodic medical examinations" needed to detect the onset of a disease.
Judge Babcock was persuaded by precedent in other circuits, observing that "[c]ourts have generally accepted tort claims for medical monitoring."
2. Developments in Colorado Courts Since Cook.
Defendants contend that Judge Babcock's prediction defied existing Colorado law in 1991 and has not been borne out by Colorado courts in the intervening 27 years. According to Tyco and Chemguard, Colorado courts require "actual physical injury as a prerequisite to claiming damages in tort." ECF No. 154 at 2-3. 3M, for its part, takes issue with the fact that " Cook reached its conclusion not by analyzing Colorado law ... but in reliance upon four medical-monitoring cases from other jurisdictions." ECF No. 157 at 8. Defendants rely on several arguably analogous cases involving "fear of cancer" or emotional distress claims to explain Colorado courts' physical injury requirement. See ECF No. 154 at 2-3 (citing Towns v. Anderson ,
In Towns , which preceded Cook by more than a decade, the Colorado Supreme Court assessed the question whether a plaintiff may assert a claim for emotional distress despite the fact that he did not sustain any physical injury at the scene of the accident that caused his distress.
In Boryla , the plaintiff brought claims for emotional distress, including fear of the increased risk of a recurrence of cancer, after a doctor failed to promptly diagnose her cancer in the first instance.
Neither of these cases precludes a medical monitoring claim in the absence of a present physical injury. Emotional distress claims are distinct from medical monitoring claims. As Judge Babcock pointed out, medical monitoring claims seek to recover the " 'quantifiable costs of periodic medical examinations.' " Cook at 1476, quoting Paoli Railroad at 850. Such claims require evidence of a plaintiff's exposure, the nature of the risk they face, and the nature of the monitoring procedures available. See id. at 1477 (outlining the elements a plaintiff must prove in a claim for medical monitoring damages). Thus, the fact that courts require evidence of a physical injury in an emotional distress claim does not indicate that such a requirement is necessary in the context of medical monitoring.
This distinction is borne out in other jurisdictions. In Burns v. Jaquays Min. Corp. ,
Aside from Boryla , neither side points to any Colorado case since Cook that might elucidate the Colorado Supreme Court's treatment of the medical monitoring claim at issue here. Regardless of the reason that the state courts have not addressed the issue, the absence of an affirmation of Judge Babcock's prediction does not amount to an overturning of that prediction. The key fact is that no Colorado state court has given any indication in the intervening years that Judge Babcock's prediction was incorrect. As such, Colorado state court decisions do not provide any basis to diverge from Judge Babcock's finding in Cook .
3. Developments in Federal Courts Interpreting Colorado Law Since Cook.
Perhaps recognizing that Colorado courts have shed little light on this question since Cook , defendants also point to decisions from the Tenth Circuit and the
First, in Dodge v. Cotter Corp. ,
The Dodge court's refusal to find that present acute physical conditions justified a "fear of cancer" emotional distress claim in a toxic tort case is inapposite to the question at issue here. As noted above, emotional distress claims are inherently less quantifiable than medical monitoring claims, and thus should require plaintiffs to prove some objective physical manifestation before they may recover for their distress. Without courts demanding such evidence, they risk a landslide of emotional distress complaints based on fear of future conditions that are unmoored from any substantial likelihood of harm. Cases for medical monitoring, however, involve requirements that the parties seeking monitoring demonstrate the elevated risk of harm before funds for monitoring will be established. See Cook ,
Moreover, I note that separate from the emotional distress claims, the Dodge plaintiffs had also raised claims of negligence involving medical monitoring as a remedy. Id. at 1194-95. The validity of medical monitoring as a remedy was not raised to the Tenth Circuit because a jury had found there was not exposure "to hazardous substances making reasonably necessary future medical monitoring or testing." Id. at 1195. Nonetheless, the fact that this claim involving medical monitoring was considered entirely separately from the emotional distress claim for future harm further bolsters the distinction between these two claims despite any apparent superficial similarities.
Defendants also cite the Tenth Circuit's decision in June v. Union Carbide Corp. ,
Contrary to defendants' contention that developments in the Tenth Circuit doom plaintiffs' claims, plaintiffs assert that developments in this Circuit since Cook demonstrate acceptance of medical monitoring claims absent physical injury. Plaintiffs survey several federal court decisions since Cook which they say demonstrate that the federal courts in this Circuit "have not raised concerns about the predicate issue of whether medical monitoring claims are viable in Colorado." ECF No. 182 at 6. In Dodge v. Cotter Corp. ,
Another court in this Circuit-the federal district court for the Northern District of Oklahoma-summarized Tenth Circuit precedent as "cast[ing] doubt on the permissibility [of] the medical monitoring remedy sought in this case." Cole v. ASARCO, Inc. ,
Thus, while the Tenth Circuit has not expressly assessed the validity of claims for medical monitoring or the use of medical monitoring as a remedy, its decisions since Cook do not evince a clear disposition against these claims. To the contrary, if anything, these decisions indicate a tacit approval from the Tenth Circuit for such claims.
4. United States Supreme Court Developments Since Cook.
Defendants contend that even if Judge Babcock's decision in Cook accurately conveyed
Defendants contend that Buckley represents a sea change from the trend observed in Cook in favor of medical monitoring claims. According to defendants, the national trend has been "to reject claims for medical monitoring for the reasons set out by the U.S. Supreme Court in [ Buckley ]." ECF No. 199 at 2. In Buckley , the Court assessed an individual's claims for damages under the Federal Employers' Liability Act ("FELA") for negligently inflicted emotional distress and to cover the cost of medical monitoring resulting from his exposure to asbestos in his workplace. The Court concluded that the emotional distress at issue did not itself constitute an "injury" as required under FELA and thus was not compensable absent any physical manifestations. Buckley ,
First, the Court found that the Second Circuit erred to the extent that its award of damages for medical monitoring was based on emotional distress as the predicate injury.
In so holding, the Buckley Court "canvassed the state-law cases" on the subject to conclude that the Second Circuit had gone farther than any other court at that time when it endorsed "a full-blown, traditional tort law cause of action for lump-sum damages" for an asymptomatic plaintiff seeking medical costs.
The Court noted policy concerns with lump sum rewards for medical monitoring claims, including that identifying the extra monitoring costs "over and above those otherwise recommended" will sometimes pose special difficulties for judges and juries, and that traditional tort liabilities "would ignore the presence of existing alternative sources of payment, thereby
As a result, I do not agree with defendants that the Supreme Court so clearly reversed the trend observed by the Cook court in 1991 of "generally accept[ing] tort claims for medical monitoring."
This characterization of Buckley was affirmed in Koch v. Hicks In re: Methyl Tertiary Butyl Ether Prods. Liab. Litig. , No. 1:00-1898, MDL 1358 (SAS),
5. Developments in Other Jurisdictions Since Cook.
In addition to citing Colorado state court decisions, federal court decisions interpreting Colorado law, and United States Supreme Court jurisprudence, the parties also both rely on the decisions of other state courts-as well as the predictions of other federal courts interpreting other states' laws-to illustrate what they each perceive as a national trend in their respective favors. While there are persuasive arguments articulated by a number of state and federal courts on both sides of the debate, neither plaintiffs nor defendants are able to demonstrate an overwhelming surge of decisions that would indicate that there is a strong national
Defendants cite various state decisions, along with federal decisions predicting state law, in which courts find that medical monitoring does not constitute a valid cause of action absent a present physical injury.See, e.g. , Norwood v. Raytheon Co. ,
Nevertheless, plaintiffs also cite a number of cases from state and federal courts reaching the opposite conclusion and recognizing medical monitoring as either an independent cause of action or as a remedy. See, e.g. , Burns v. Jaquays Min. Corp. ,
Thus, as these competing lists indicate, and as several of the cases cited herein acknowledge, the question of the validity of medical monitoring claims absent a present physical injury is one that "has divided state and federal courts in recent decades." Allgood ,
6. Conclusion Regarding Medical Monitoring Claim.
Defendants' argument boils down to the fact that plaintiffs have not "provide[d] any basis for this Court to predict that the Colorado Supreme Court would agree with one of the courts they cite rather than" with the Buckley decision or any of the state courts that rejected claims for medical monitoring. ECF No. 199 at 3. However, as indicated above, Buckley does not support defendants' contention as clearly as they argue; the Colorado cases they have cited are distinguishable; the Tenth Circuit and District of Colorado precedent is on balance modestly in plaintiffs' favor; and other state courts are generally divided on the question. As such, defendants have not provided any basis on which to conclude that Judge Babcock's prediction is invalid. I will not find his prediction incorrect merely because it remains untested in this state. Moreover, I note that the same policy consideration that swayed Judge Babcock in favor of acknowledging medical monitoring claims in 1991 remain persuasive today. Thus, I conclude that though it is a close call, plaintiffs have the stronger argument. As such, I reaffirm Judge Babcock's prediction that in an appropriate case, the Colorado Supreme Court would probably recognize a claim for medical monitoring absent present physical injury.
B. Standing to Bring Medical Monitoring Claim.
In addition to disputing the existence of a medical monitoring claim under Colorado law, 3M also alleges that plaintiffs lack standing to assert a medical monitoring claim should one exist. ECF No. 157 at 10. "The standing inquiry ensures that a plaintiff has a sufficient personal stake in a dispute to ensure the existence of a live case or controversy which renders judicial resolution appropriate." Tandy v. City of Wichita ,
According to 3M, plaintiffs "seek to recover for hypothetical and speculative injuries" rather than for "concrete and particularized" and "actual or imminent, not conjectural or hypothetical" invasions of legally protected interests. ECF No. 157 at 10 (quoting Lujan ,
As an initial matter, the "injury" required for standing is distinct from the "present physical injury" discussed above in the context of the medical monitoring claim. Plaintiffs provide multiple explanations of their injury in this case. In their complaint they assert that the injury they have suffered under this claim is the "increased risk of injury" due to exposure to
Other courts have concurred with the latter characterization of the injury in medical monitoring cases. See, e.g. , Friends for All Children, Inc. v. Lockheed Aircraft Corp. ,
Because plaintiffs' asserted injury of the cost of medical care is real, concrete and redressable by a medical monitoring fund established by the Court, this injury suffices to establish plaintiffs' standing. Though plaintiffs might have pled their injury more consistently, their failure to do so does not undermine their standing to assert their medical monitoring claim.
C. Adequately Pleading the Elements of the Medical Monitoring Claim.
Having reaffirmed Judge Babcock's prediction in Cook that the Colorado Supreme Court would likely recognize a medical monitoring claim even in the absence of a present physical injury, and that plaintiffs have standing to assert this claim, I must next reach defendants' argument that plaintiffs have failed to adequately plead the required elements of such a claim.
As articulated by Judge Babcock in Cook , a claim for medical monitoring requires a plaintiff to establish that (1) the plaintiff has suffered a significant exposure to a hazardous substance through the tortious actions of the defendant; (2) as a proximate result of this exposure, the plaintiff suffers from an increased risk of contracting a serious latent disease; (3) that increased risk makes periodic diagnostic medical examinations reasonably necessary; and (4) monitoring and testing procedures exist which make the early detection and treatment of the disease possible and beneficial. Cook ,
Tyco and Chemguard argue that plaintiffs have failed to plead that they were significantly exposed to the substances at issue, or that such exposure significantly increased their risk of contracting a serious disease.
Thus, I am satisfied that plaintiffs have plausibly pled significant exposure and a significantly increased risk of contracting a serious disease. Though an EPA guidance document may prove inadequate to ultimately prove significant exposure, it provides sufficient support at this stage to plausibly plead that plaintiffs have been exposed to a significant level of the toxins at issue. For example, I am satisfied that plaintiffs have plausibly pled significant exposure to PFCs where they allege that their wells revealed "some of the highest levels of contamination" nationwide, and that one of the wells tested in plaintiffs' communities revealed PFC levels "nearly 20 times in excess of the EPA health advisory." ECF No. 126 at 4-5. While plaintiffs have not yet proven what a significant level of exposure is, they need not do so at this stage, but with the assistance of the EPA guidance they have met their requirement to plausibly plead significant exposure.
However, Tyco and Chemguard argue more convincingly that plaintiffs have not provided any factual allegations as required to plead there exists (a) a monitoring procedure that makes early detection of disease possible, (2) that is different from the monitoring normally recommended in the absence of the exposure, and (3) that is reasonably necessary according to contemporary scientific principles. ECF No. 154 at 12 (citing Redland Soccer ,
Tyco and Chemguard point to cases dismissing similarly pled complaints for the failure to identify a particular medical monitoring procedure and to explain how it differs from the monitoring used for all patients with the condition at issue. ECF No. 154 at 13 (citing In Re Avandia Mktg., Sales Practices & Prods. Liab. Litig. , MDL Nos. 1871, 07-MD-01871,
Although I acknowledge the difficulties plaintiffs face in obtaining sufficient facts, I agree with defendants that plaintiffs' Second Amended Complaint lacks the specificity required to assert that medical examinations are reasonable and necessary to detect the claimed diseases. Instead, the complaint asserts only that "[m]edical tests currently exist that can determine the level of PFOA and PFOS in the blood," and that because "bioaccumulation of elevated levels of PFOA and PFOS in an individual's blood significantly increases the risk of contracting a serious medical condition, periodic medical examinations are both reasonable and necessary to detect latent diseases." ECF No. 126 at 50. As defendants point out, this allegation does not contend that medical tests exist to detect the latent diseases alleged, which include kidney and testicular cancer, ulcerative colitis, thyroid disease, pregnancy induced hypertension, and hypercholesterolemia.
As Judge Babcock noted when he dismissed the plaintiffs' complaint in Cook with leave to amend: "in a case of this magnitude, a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed."
D. Motion to Certify Question.
In the event the Court declines to grant dismissal, Tyco and Chemguard move the Court to certify the question whether Colorado recognizes a cause of action for medical monitoring to the Colorado Supreme Court. ECF No. 155. Because I have granted the dismissal of plaintiffs' claim for medical monitoring, this motion is moot.
However, because my dismissal is based on plaintiffs' failure to plead elements of the claim, which they may remedy, rather than based on a fatal flaw in the medical monitoring theory itself, I will note that I would not certify this question to the Colorado Supreme Court even if I were not dismissing plaintiffs' claim on the
E. Conspiracy Claim.
Plaintiffs added a cause of action for civil conspiracy under Colorado law in their Second Amended Complaint. ECF No. 126 at 56. In this claim, plaintiffs assert that defendants "agreed, by words or by conduct, to further" the goal of profiting from the manufacture, sale, and distribution of AFFF despite their awareness of the product's dangers to the environment and human health." Id. at 56-57.
3M and Buckeye assert-and plaintiffs appear to concede-that this civil conspiracy claim sounds in fraud insofar as it alleges that defendants attempted to deceive the public and the government about the safety of AFFF. See ECF No. 157 at 13; ECF No. 184 at 12 (plaintiffs concede that Rule 9(b) applies to this claim). Thus, because this civil conspiracy claim is based on alleged fraudulent acts, "the fraudulent acts must be pled under the standard of Rule 9(b)." In re Qwest Commc'ns Intern., Inc. Sec. Litig. ,
To establish a civil conspiracy in Colorado, plaintiffs must prove "(1) two or more persons, and for this purpose a corporation is a person; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof.' " Qwest ,
Plaintiffs' complaint contains the following allegations in support of the conspiracy
I am not satisfied that plaintiffs have plausibly pled the existence of a civil conspiracy sounding in fraud with the particularity required by Rule 9(b). The complaint lacks specific allegations of fraud aside from conclusory allegations of misrepresentations. There are no allegations about the "time, place and contents" of any false representations. Koch ,
It is not clear what information plaintiffs are missing that would be in defendants' exclusive control, especially considering, as defendants point out, that plaintiffs allege that defendants publicly misled the government and the public, so these statements would presumably be publicly available. ECF No. 198 at 4. Even assuming, however, that plaintiffs had some difficulty obtaining information in defendants' control, the allegations they do provide fall far short of even the relaxed standard courts apply in such cases. In McNees , for example, the court noted that "some of Plaintiff's allegations are stated with more specificity than others," but it concluded that "when evaluated as a whole," the plaintiff's complaint "contains several specific allegations of fraud."
Similarly, although the Tenth Circuit in George did observe that " Rule 9(b)'s purpose is 'to afford [a] defendant fair notice' of a plaintiff's claims and the factual grounds supporting those claims," the George court in fact enforced a much higher standard than plaintiffs would have this Court apply.
Finally, I agree with defendants that in addition to failing to provide sufficient particularity as to the fraudulent statements, plaintiffs have also failed to explain how defendants participated in a conspiracy with each other rather than merely participating in parallel conduct. See Henson v. Bank of Am. ,
As such, 3M's motion to dismiss plaintiffs' civil conspiracy claim is GRANTED; this claim is dismissed without prejudice.
ORDER
1. ECF No. 154, Tyco and Chemguard's motion to dismiss, is GRANTED. The claims are dismissed without prejudice and with leave to amend.
2. ECF No. 155, Tyco and Chemguard's motion to certify a question, is DENIED.
3. ECF No. 157, 3M's motion to dismiss, is GRANTED. The claims are dismissed without prejudice and with leave to amend.
4. ECF Nos. 159, 160 and 219, motions to join in motions to dismiss, are GRANTED. The moving defendants are granted leave to join, and the rulings on the motions to dismiss are equally applicable to their joinder motions.
5. ECF No. 200 and 202, motions to strike, are DENIED.
6. The Court's order at ECF No. 167 modifying the caption is VACATED.
Notes
On February 2, 2018 plaintiffs' moved to amend the caption to list the plaintiffs and the defendants identified in the body of the Second Amended Complaint as the plaintiffs and the defendants in the caption. ECF No. 156. No response was filed, and not realizing at the time that this would create controversy, the Court granted the motion. ECF No. 167. The issues raised in ECF No. 207, the two sets of responses, ECF Nos. 227 and 230, and the two sets of replies, ECF Nos. 236 and 244, demonstrate that even the caption of the consolidated case is in play. I also note that for the most part the parties have continued to use the original caption notwithstanding the Court's order granting the motion to modify the caption. I now vacate the order found at ECF No. 167 and will consider the caption together with the issues raised in ECF No. 207 at the November 30, 2018 hearing, if possible, or thereafter, if necessary.
In arguing that they have standing to raise this claim, plaintiffs assert yet another theory of their injury: "[t]he injury in a claim for medical monitoring is the cost of the medical care that will, one hopes, detect that injury." ECF No. 184 at 8.
Defendants also cite Gibbons v. Ludlow ,
The fact that Towns predated Judge Babcock's decision but did not factor into his reasoning indicates that the issues presented were not instructive in the context of a medical monitoring claim.
The Court is aware of the reports of plaintiff's expert Kenneth Spaeth, M.D., which are the subject of one of defendants' Daubert motions and, in turn, the Court's order on Daubert motions. That is a different matter than the sufficiency of plaintiffs' pleading.
3M argues as an initial matter that plaintiffs violated Red. R. Civ. P. 15(a)(2) by amending their complaint with a class-based civil conspiracy claim despite assuring the Court and defendants that they would only be adding individual claims. ECF No. 157 at 12-13. Plaintiffs acknowledge that there may have been a "miscommunication" on the nature of their amended complaint. ECF No. 184 at 2 n.1. Because I resolve this issue on the merits, I need not reach this procedural issue. See Denver & Rio Grande Western R. Co. v. Union Pacific R. Co. ,