Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN LUCAS ROUGEAU, et al. ,
Plaintiffs, OPINION AND ORDER v.
23-cv-546-wmc AHLSTROM RHINELANDER, LLC, et al. ,
Defendants.
This individual and putative class action stems from the manufacture and sale of per- and polyfluoroalkyl substances ( PFAS ) [1] by defendants 3M Company and BASF Corporation, and the alleged mishandling of waste containing PFAS by the entities that owned and operated the Rhinelander Paper Mill in Oneida County, Wisconsin. Specifically, plaintiffs allege that Wausau Paper Corp. and Wausau Paper Mills, LLC, (collectively, Wausau Paper ), as well as Ahlstrom Rhinelander LLC, Ahlstrom NA Specialty Solutions Holdings Inc, and/or Ahlstrom NA Specialty Solutions LLC (collectively, “Ahlstrom”) , improperly disposed of waste by spreading it on farmland where it could leach onto plaintif fs’ properties and into their drinking water. In response, defendants Ahlstrom, Wausau Paper, and 3M have filed motions to dismiss. (Dkts. ##50, 55, 94.) For the reasons explained below, the court will deny Ahlstrom s and Wausau Paper s motions to dismiss, while granting in part 3M s motion to dismiss plaintiffs’ trespass claim against it.
ALLEGATIONS OF FACT [2] All individuals named as plaintiffs, as well as all members of the named plaintiff LLCs, are Wisconsin citizens and own properties in Oneida County, Wisconsin. (Fourth Am. Compl. (dkt. #113) ¶¶ 1, 9-36.) Plaintiffs allege that defendants Wausau Paper Corp. and Wausau Paper Mills, LLC, owned and operated the Rhinelander Paper Mill until August 2013. ( Id. ¶¶ 41-42.) Plaintiffs allege that Wausau Paper Mills, LLC has a single member, Wausau Paper Corp., a Wisconsin corporation with its principal place of business in Pennsylvania. ( Id. ¶ 41.) Although this alone defeats complete diversity of citizenship, the court has already found that plaintiffs have adequately alleged class action jurisdiction under 28 U.S.C. § 1332(d). (Dkt. #91.) [3]
Next, plaintiffs allege that Rhinelander Paper Mill was transferred in August 2013 to defendants Ahlstrom Rhinelander LLC, Ahlstrom NA Specialty Solutions Holdings Inc, and/or Ahlstrom NA Specialty Solutions LLC, who now own and/or operate the Rhinelander Paper Mill. ( Id. ¶¶ 38, 42.) Ahlstrom Rhinelander LLC has a single member, Ahlstrom NA Specialty Solutions, LLC, which also has a single member, Ahlstrom Specialty Solutions Holdings, Inc. Plaintiffs allege that Ahlstrom Specialty Solutions Holdings, Inc. is a Delaware corporation with its principal place of business in Connecticut. ( )
Further, at the Rhinelander Paper Mill, both Ahlstrom and Wausau Paper (collectively, the “ paper mill defendants ” ) allegedly used PFAS products manufactured by defendants 3M and BASF. ( Id. ¶ 43.) PFAS are a class of man-made, degradation-resistant chemicals that have been found “ globally ” in water, soil, air, and human blood serum. ( Id. ¶¶ 50-51.) Studies suggest that exposure to certain PFAS may result in adverse impacts on human health. ( Id. ¶ 53.) “F or decades until the present, ” plaintiffs allege that Annual Land Application Reports show Ahlstrom, Wausau Paper and their predecessors have spread millions of pounds of waste sludge on farmlands without warning property owners that it was PFAS-laden nor of the dangers associated with PFAS. ( Id. ¶¶ 70, 72.) As a result, plaintiffs allege defendants wrongfully caused their properties to be contaminated with PFAS, creating an environmental and public health hazard. ( ¶ 74.)
OPINION
The current complaint alleges the following class and individual claims: (1) design defect and/or defective product against defendants 3M and BASF; (2) failure to warn/inadequate instructions or warnings against 3M and BASF; (3) negligence resulting in property damage against all defendants; (4) private nuisance against all defendants; (5) trespass against all defendants; and (6) strict liability for abnormally dangerous activity against defendants Ahlstrom and Wausau Paper. [4]
Before turning to the other defendants’ motions to dismiss for failure to state a claim, the court will first resolve the Ahlstrom defendants motion to dismiss Ahlstrom NA Specialty Solutions Holdings, Inc. ( Ahlstrom Holdings ) for want of personal jurisdiction. [5] For the reasons explained below, the court will deny the other defendants motions except for dismissal of plaintiffs trespass claims against defendant 3M. I. Motion to Dismiss Ahlstrom Holdings for Lack of Personal Jurisdiction
In a perfunctory, one-page motion, Ahlstrom asks the court to dismiss Ahlstrom
Holdings for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2). (Dkt. #51, at
17-18.) Plaintiffs have the burden of making a prima facie showing that the court’s exercise
of personal jurisdiction is consistent with both state law and the Due Process Clause.
Mobile Anesthesiologists Chicago, LLC v. Anesthesia Assocs. of Houston Metroplex, P.A.
, 623 F.3d
440, 443 (7th Cir. 2010);
Hyatt Int’l Corp. v. Coco
,
Plaintiffs correctly note that the court may exercise personal jurisdiction provided
(1) the defendant has purposefully directed his activities at the forum state or purposefully
availed himself of the privilege of conducting business in that state, and (2) the alleged
injury arises out of the defendant s forum-related activities.
Tamburo v. Dworkin
, 601 F.3d
693, 702 (7th Cir. 2010) (citing
Burger King Corp. v. Rudzewicz
,
Alternatively, Ahlstrom points out that a holding company is not typically subject
to personal jurisdiction solely based on alleged contacts in the forum state by one of its
subsidiaries.
Meier v. Wright Med. Tech., Inc.
, No. 14-CV-505-WMC,
II. Motions to Dismiss for Failure to State a Claim
As for defendants’ remaining motions to dismiss for failure to state a claim, t he
court will start with defendant 3M s argument to dismiss
all
claims against it, then address
defendants various arguments that individual claims should be dismissed. A complaint
survives a motion to dismiss if it contain[s] sufficient factual matter, accepted as true, to
‘ state a claim to relief that is plausible on its face. ’”
Ashcroft v. Iqbal
,
A. 3M s Motion to Dismiss All Claims
Each of plaintiffs’ claims against 3M requires causation.
See
Wis. Stat.
§ 895.047(1)(e) (strict-liability design defect and failure to warn);
Hornback v. Archdiocese of
Milwaukee
,
In Wisconsin, causation has two components -- cause-in-fact and proximate cause. Morgan v. Pennsylvania Gen. Ins. Co. , 87 Wis. 2d 723, 735, 275 N.W.2d 660 (1979). Although seldom a good candidate for a pleading defect, defendant 3M nevertheless focuses its motion on proximate cause. Specifically, 3M argues that even if its conduct was a cause-in-fact of plaintiffs alleged injuries, the fourth amended complaint precludes a finding of liability because the paper mill defendants decision to dispose of PFAS-laden waste on farms was a superseding cause.
Proximate cause is a collection of six public policy factors, including whether the
plaintiff s injury is too remote from the defendant s causal negligence and allowing recovery
would enter a field that has no sensible or just stopping point.
Fandrey ex rel. Connell v. Am.
Fam. Mut. Ins. Co.
, 2004 WI 62, ¶ 10, 272 Wis. 2d 46, 680 N.W.2d 345;
Cefalu v.
Continental Western Ins. Co.
,
As an initial matter, plaintiffs rightly point out that superseding cause is an
affirmative defense on which 3M bears the burden of proof. Wis. Stat. § 802.02(3) (listing
affirmative defenses, including superseding cause). While the doctrines of superseding and
intervening cause are subsumed in the public policy analysis of proximate cause,
particularly the factor of remoteness,
Allen
,
Even considering the merits of 3M’s motion , plaintiffs have plausibly pleaded facts allowing not just the possibility that 3M lacks a superseding cause defense, but a reasonable inference that 3M s conduct was the proximate cause of their injuries. Specifically, plaintiffs allege 3M sold PFAS products to Rhinelander Paper Mill when it knew or should have known that: (1) using such products would release PFAS; (2) the paper mill defendants would likely dispose of PFAS-laden waste sludge from the Rhinelander Paper Mill by spreading it on farmland; (3) when waste sludge is applied to farmland, PFAS can migrate into soils and water, resist biodegradation, and contaminate groundwater, including drinking water; (4) PFAS are difficult and costly to remove from the water; and (5) if applied, PFAS would also contaminate the farmland and nearby properties, causing human exposure and health risks. (Fourth Am. Compl. (dkt. #113) ¶ 180.) By the 1970s, plaintiffs also allege that 3M knew or should have known that PFOA and PFOS specifically were toxic, migrated through the subsurface, mixed with groundwater, resisted natural degradation, rendered drinking water unsafe and/or non-potable, and could be removed from property and drinking water only at substantial expense. ( Id. ¶ 59.) Thus, plaintiffs have plausibly alleged facts sufficient to infer that the paper mill defendants ’ use of its PFAS products in its manufacture of paper would require disposal of PFAS-laden sludge and its escape into the environment was reasonably foreseeable to 3M, whether on farmland or otherwise.
For its part, 3M instead emphasizes plaintiffs allegations that at least arguably suggest the paper mill defendants dumping of PFAS-laden sludge on farmland was not foreseeable to it. Specifically, 3M points to plaintiffs allegation that [s]preading solids and waste containing high levels of PFOA, PFOS, and other PFAS on farmland near residential drinking water sources is not a common practice, and is not in common usage. ( Id. ¶ 160 (emphases added).) Moreover, plaintiffs also allege that disposal of PFAS-laden waste was inappropriate where there was a potential pathway to groundwater, and the paper mill defendants further broke the law by not informing the Wisconsin DNR that the sludge contained elevated and dangerous concentrations of PFAS. ( ¶¶ 69, 158.) Such allegations arguably contradict plaintiffs other allegations that 3M knew or should have known that the paper mill defendants would spread the PFAS-laden sludge on farmland. Again, however, “ a party may state as many separate claims or defenses as it has, regardless of consistency ” and allege inconsistent facts. Fed. R. Civ. P. 8(d)(3); see Consistency in Pleadings Not Demanded , 5 Fed. Prac. & Proc. Civ. § 1283 (3d ed.) ( “ a party may include inconsistent allegations in a pleading ’ s statement of facts ” ). Regardless, at the pleading stage, plaintiffs have certainly not pleaded out 3M on causation grounds and any allocation of legal responsibility will have to await a fact intensive inquiry.
Finally, invoking another public policy factor, 3M argues that [i]f recovery were permitted here, there would be no sensible or just stopping point to liability because a manufacturer who sells a product with an alleged defect can be held liable for intentional torts committed by customers who allegedly misuse the manufacturer ’ s product, no matter how uncommon or inappropriate the customers ’ conduct. (Dkt. #95, at 16.) However, denying 3M s motion to dismiss is a far cry from deciding whether plaintiffs recovery against any defendant is consistent with public policy. Hopefully, with the benefit of discovery, an answer to that question will become clear. Right now, however, the court is not remotely able to find as a matter of undisputed fact that land application of PFAS-laden waste was not foreseeable to 3M.
B. 3M s Motion to Dismiss Strict-Liability and Negligence Claims
In a closely related argument, 3M argues that plaintiffs strict liability and
negligence claims should also be dismissed because it had no duty to guard against
unforeseeable harm. To be sure, [d]uty pivots on foreseeability.
Strasser v. Transtech
Mobile Fleet Serv., Inc.
,
C. 3M ’ s Motion to Dismiss Strict-Liability Claims
In addition, 3M moves to dismiss plaintiffs strict-liability claims because: (1) they are barred by Wisconsin ’ s statute of repose; and (2) plaintiffs have not stated strict liability, design-defect and failure-to-warn claims. The court addresses these arguments separately below.
1. Statute of Repose
3M argues that plaintiffs strict-liability claims are barred by Wisconsin s 15-year statute of repose, [8] which states that a defendant is not liable to a claimant for damages if the product alleged to have caused the damage was manufactured 15 years or more before the claim accrues, unless the manufacturer makes a specific representation that the product will last for a period beyond 15 years. Wis. Stat. § 895.047(5).
Here, 3M s argument for dismissal based on Wisconsin s statute of repose is also an
affirmative defense, and a motion to dismiss is typically not the appropriate mechanism
for presenting such a defense.
Hastings Mut. Ins. Co. v. Omega Flex, Inc.
, No. 21-CV-713-
JDP,
Indeed, 3M relies on sources
outside
of the complaint -- the Federal Register and the
Wisconsin DNR s website, which purport to contain the dates that 3M announced phase
out of certain PFAS production and the Wisconsin DNR began testing wells for PFAS,
respectively. (Dkt. #95, at 18.) While judicial notice of matters of public record need
not convert a motion to dismiss into a motion for summary judgment at the pleading
stage,
Ennenga v. Starns
,
First, Wisconsin has adopted the “ discovery rule ” for determining accrual of claims
for tort actions, like product liability claims, which are not governed by a legislatively
created discovery rule.
Hansen v. A.H. Robins, Inc.
,
Second, pointing to the Federal Register in particular, 3M asserts that it announced a voluntary phase-out of perfluorooctanyl chemistries, including PFOS in May 2000, 68 Fed. Reg. 18626, while plaintiffs allege that 3M phased out production of PFOS in 2002 and will not have exited all PFAS manufacturing until the end of 2025. (Fourth Am. Compl. (dkt. #113) ¶ 157.) At the earliest, therefore, 3M asserts that plaintiffs strict- liability claims accrued when the Wisconsin DNR began sampling wells for PFAS in the summer of 2022, more than 15 years after 3M had phased out PFOS production. PFAS Contamination in the Town of Stella , https://dnr.wisconsin.gov/topic/PFAS/Stella.html (last visited May 27, 2025).
Third, the court will still not grant 3M s motion to dismiss based on Wisconsin’s statute of repose for several reasons. Most importantly, plaintiffs allege that [d]efendants specifically represented that their PFAS products had significant periods of useful life, spanning beyond 15 years, seemingly implicating the statutory exception to the 15-year period of repose. (Fourth Am. Compl. (dkt. #113) ¶ 102); Wis. Stat. § 895.047(5). Although 3M argues that this is just a conclusory allegation insufficient to avoid application of the statute of repose, plaintiffs also allege that PFAS persist in the environment, resist degradation, and have a long shelf life (exceeding 20-25 years), which makes plaintiffs’ allegation that 3M represented that its PFAS products would last more than 15 years quite plausible, at least at the pleading stage. (Fourth Am. Compl. (dkt. #113) ¶ 50.) Moreover, plaintiffs allege that PFOA and PFOS are types of PFAS, and that 3M continues to manufacture products containing PFAS to this day, suggesting that there could be other types of PFAS that were manufactured and later released into the environment, so 3M having stopped production of certain types of PFAS in 2002 is not determinative of when the statute of repose period would begin for all PFAS. [9] ( ¶¶ 49, 157.)
Finally, plaintiffs only allege that they recently discovered that their wells were contaminated. While the Wisconsin DNR s website further appears to show discovery ” of PFAS in certain wells as occurring as early as in 2022, it does not actually specify when plaintiffs discovered PFAS in their wells.
2. Defective Design
To state a strict-liability defective design claim, plaintiffs must allege, among other things, that: (a) the design of 3M s PFAS products posed foreseeable risks that could have been reduced or avoided by adopting a reasonable, alternative design; and (b) the omission of this alternative design stopped the products from being safe. Wis. Stat. § 895.047(1)(a).
Here, 3M argues that since “ PFAS Products ” necessarily cannot be made without
PFAS, its design of such products was
not
defective on their face.
See Godoy ex rel. Gramling
v. E.I. du Pont de Nemours & Co.
,
As for 3M ’s criticism of plaintiffs for not plausibly alleging that 3M could have
manufactured a reasonable, safer substitute for PFAS -- beyond the conclusory allegation
that the foreseeable risks of harm posed by Defendants products could have been reduced
or avoided by the adoption of a reasonable alternative design by the manufacturer (Fourth
Am. Compl. (dkt. #113) ¶ 97) -- this, too, is sufficient to state a claim. As a general
principle, a pleading that offers a “ formulaic recitation of the elements of a cause of action
will not do, ”
Iqbal
,
Of course, other courts
have
dismissed similar, design defect claims.
E.g.
,
Ryan v.
Greif, Inc.
,
3. Failure to Warn
Finally, to state a failure-to-warn claim against 3M under Wisconsin law, plaintiffs must allege that the “ foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the manufacturer and the omission of the instructions or warnings renders the product not reasonably safe. ” Wis. Stat. § 895.047(1)(a). In their fourth amended complaint, plaintiffs allege that 3M knew, or reasonably should have known, of the foreseeable risks and defects of PFAS [p]roducts, but failed to provide adequate warnings of the known and foreseeable risks of PFAS Products, including contamination of properties and water supplies with PFOA and PFOS. (Fourth Am. Compl. (dkt. #113) ¶ 115.) Plaintiffs further allege that: 3M failed to provide adequate instructions regarding the use and disposal of its PFAS products ; and the harm posed by 3M s PFAS products could have been reduced or avoided by 3M providing reasonable instructions or warnings to its customers. ( ¶¶ 115, 116.) Once again, 3M criticizes these allegations for simply tracking the elements of a failure-to-warn claim, but plaintiffs also allege 3M knew or should have known since the 1970s that PFAS were toxic, mixed easily with groundwater, resisted degradation, and rendered drinking water unsafe and/or non-potable. (Fourth Am. Compl. (dkt. #113) ¶ 59.) Moreover, by the 1980s, plaintiffs alleged that 3M had published data showing that humans retained PFOS in their bodies for years, in part by documenting increasing levels of PFOS in the bodies of its workers. ( Id. ¶¶ 61, 63.) Despite its growing knowledge of the potential dangers with PFAS products, plaintiffs further allege that 3M failed to warn its customers of the risks and dangers of soil and groundwater contamination resulting from standard use and disposal of PFAS products. ( ¶ 66.) These allegations alone plausibly state a failure-to-warn claim.
Next, 3M asserts that plaintiffs must show a third party, including the paper mill
defendants, would have heeded a different warning.
In re Zimmer, NexGen Knee Implant
Prods. Liab. Litig.
,
To begin, plaintiffs represent in their response brief that they are legitimately in
doubt as to what the paper mill defendants knew and what (if any) warning 3M provided
to them. (Dkt. #96, at 14.) Regardless, as already noted, plaintiffs are permitted to plead
alternative facts.
See Consistency in Pleadings Not Demanded
, 5 Fed. Prac. & Proc. Civ. § 1283
(3d ed.). And even if the paper mill defendants independently knew about the dangers of
spreading PFAS-laden sludge, that fact alone does not necessarily mean that a reasonable
jury could not find a warning
from 3M itself
, as the products’ manufacturer, would have
been
more
effective.
See Ryan
,
D. Wausau Paper s and 3M ’ s Motions to Dismiss Private Nuisance and Trespass Claims
Plaintiffs further allege that all defendants acted intentionally and negligently in creating a private nuisance and trespassing by causing their properties and wells to become contaminated by PFAS. In response, defendant Wausau Paper moves to dismiss plaintiffs intent-based private nuisance and trespass claims, while 3M moves to dismiss plaintiffs intent- and negligence-based private nuisance and trespass claims. The court will deny Wausau Paper s motion and 3M’s motion as to the nuisance claims but will dismiss plaintiffs’ trespass claims against 3M.
1. Intentional Private Nuisance
Wisconsin has adopted the Restatement (Second) of Torts ’ analysis for claims of private nuisance. Prah v. Maretti , 108 Wis. 2d 223, 231-32, 321 N.W.2d 182 (1982). The Restatement provides that:
One is subject to liability for a private nuisance if, but only if,
his conduct is a legal cause of an invasion of another s interest in the private use and enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.
Restatement (Second) of Torts
§ 822 (A.L.I. 1979). In particular, interference with another s
interest in the use and enjoyment of land is deemed intentional if, among other things,
the actor knows that it is resulting or is substantially certain to result from his conduct.
Milwaukee Metro. Sewerage Dist. v. City of Milwaukee
,
a. Wausau Paper Plaintiffs have adequately alleged an intentional private nuisance claim against Wausau Paper. As for the first element, plaintiffs have pleaded an invasion of their interest in the private use and enjoyment of their land by alleging that defendants caused their properties and water wells to be contaminated by PFAS. (Fourth Am. Compl. (dkt. #113) ¶ 141.) Plaintiffs further allege that they: (1) were exposed to chemical substances by using water for drinking, cooking, bathing, and cleaning; (2) have incurred ongoing costs for investigation, remediation, treatment, and monitoring; and (3) have lost use and enjoyment of their property, including an inability to garden, drink or cook with tap water, or bathe without fear. ( Id. ¶ 142.)
Turning to the second element, and taking all inferences in plaintiffs ’ favor, they
have also sufficiently pleaded that Wausau Paper ’s intentional interference with their
interest in the use and enjoyment of land, alleging “ [d]efendants knew that it was
substantially certain the spreading of “ millions of pounds ” of papermill sludge containing
PFAS on farmland would threaten public health and cause extensive contamination of
property and drinking water supplies. ( ¶¶ 70, 145.) Thus, plaintiffs allege that
Wausau Paper knew that its activity (applying papermill sludge containing PFAS to
farmland) was causing harm to another s interest in the use and enjoyment of the land by
contaminating land and water supplies.
Milwaukee Metro. Sewerage Dist.
,
Even so, Wausau Paper argues that plaintiffs have not alleged it had any knowledge of PFAS in its byproduct, let alone that it knew that PFAS could travel in the groundwater to plaintiffs properties. Wausau Paper also suggests that 3M and BASF did not warn it about the dangers of PFAS because plaintiffs allege that [d]efendants represented, asserted, claimed and warranted that PFAS Products did not require any special handling or precautions with respect to disposal to prevent PFAS contamination of property and human exposure. (Fourth Am. Compl. (dkt. #113) ¶ 98.) Still, plaintiffs also allege that Wausau Paper did not warn property owners of the dangers associated with PFAS applied to their properties, nor did they warn landowners in communities that could be affected by their waste application ” ( id. ¶ 70), at least implying that Wausau Paper did know and chose not to disclose that its waste contained PFAS and that PFAS were dangerous. Indeed, plaintiffs allege that Wausau Paper knew or should have known that (1) PFAS were dangerous and (2) disposal of PFAS on farmland could lead to groundwater contamination. ( Id. ¶ 71.) Thus, the court will deny Wausau Paper ’ s motion to dismiss plaintiffs ’ intentional private nuisance claim.
b. 3M 3M also argues that plaintiffs intentional private nuisance claim against it should be dismissed because plaintiffs do not allege that 3M intended for the paper mill defendants to dump waste containing PFAS on farmland, which could then leach into the plaintiffs properties. Although it is a closer question, plaintiffs have adequately alleged that 3M knew since the 1970s, PFAS could “ migrate through the subsurface, mix easily with groundwater, resist natural degradation, render drinking water unsafe and/or non-potable. ” ( Id. ¶ 59.) Plaintiffs further allege that PFAS products cause extensive groundwater contamination when used and disposed of in a foreseeable and intended manner. ( ¶ 100.) Taken favorably to plaintiffs, those allegations allow a reasonable trier of fact to infer that 3M was substantially certain that its PFAS products sold to the paper mill defendants could contaminate plaintiffs properties, making drinking water unsafe. While 3M points out that plaintiffs also allege that the paper mill defendants application of PFAS-laden sludge on farmland was inappropriate and not a common practice ( id. ¶¶ 158, 160), once again, plaintiffs are allowed to plead inconsistent facts.
Separately, relying on
Robert E. Lee & Assocs., Inc. v. Peters
,
2. Intentional Trespass
Plaintiffs represent in their opposition brief that they “do not intend to proceed on a theory that 3M intentionally trespassed on their property” (dkt. #96, at 16 n.8), so the court will dismiss that claim against 3M, but this still leaves Wausau Paper’s argument that plaintiffs have failed to state an intentional trespass claim against it.
To state a claim for intentional trespass, plaintiffs must allege facts showing that
Wausau Paper intentionally . . . cause[d] a thing to enter plaintiffs land.
Grygiel
, 2010
WI 93, ¶ 40. An intent to cause injury exists where the actor subjectively intends to cause
injury or where injury is substantially certain to occur from the actor s conduct.
Gouger v.
Hardtke
,
Plaintiffs have alleged that Wausau Paper caused PFAS to contaminate their
properties and wells. (Fourth Am. Compl. (dkt. #113) ¶ 149.) For its part, Wausau Paper
argues that plaintiffs did not adequately allege that it intentionally contaminated their
properties. More specifically, Wausau Paper points out that “ intent required for trespass
is not merely an intention to do the act which brings about the injury, but rather an intent
to act with reference to the chattel .”
Wisconsin Power & Light Co. v. Columbia Cnty.
, 3 Wis.
2d 1, 8,
3. Negligent Trespass Claim Against 3M
Defendant 3M maintains that it cannot be held legally responsible for negligent
trespass of PFAS or PFAS-laden waste at the time that it contaminated plaintiffs properties
because: (1) it had already sold the PFAS-containing products to the paper mill defendants;
(2) it was the paper mill defendants who chose to use those products in manufacturing
paper and generating PFAS-laden waste; and (3) the paper mill defendants allegedly,
improperly disposed of the waste on farmland before it leached PFAS onto plaintiffs properties. Moreover, plaintiffs did not respond to this specific argument, which 3M
correctly points out amounts to waiver.
Wojtas v. Cap. Guardian Tr. Co.
,
Here, plaintiffs allege that 3M manufactured, marketed, promoted, distributed, and/or sold PFAS to the paper mill defendants, but do not allege that 3M owned or possessed the PFAS at the time it was applied to farmland. (Fourth Am. Compl. (dkt. #113) ¶ 45.) Thus, the court will dismiss plaintiffs negligent trespass claim against 3M.
E. Paper Mill Defendants Motions to Dismiss Strict Liability Claims for Abnormally Dangerous Activity
Plaintiffs separately allege that defendants Ahlstrom and Wausau Paper are also
subject to strict liability for applying sludge containing PFAS to farmland. (Fourth Am.
Compl. (dkt. #113) ¶¶ 155-65.) Wisconsin law imposes strict liability on those engaging
in “ abnormally dangerous ” activities when doing so results in harm to another.
Fortier v.
Flambeau Plastics Co.
,
As an initial matter, the paper mill defendants seek dismissal of plaintiffs strict
liability claims for abnormally dangerous activity because those claims hinge on the
presence of PFAS in sludge, asserting that strict liability applies to dangerous
activity
, not
to dangerous
material
. To be sure, “ ultrahazardousness or abnormal dangerousness is . . .
a property not of substances, but of activities. ”
Indiana Harbor Belt R. Co. v. Am. Cyanamid
Co.
,
Moreover, the Seventh Circuit has found that the presence of allegedly dangerous
substances, like PFAS, is at minimum
relevant
to determining whether an activity is
abnormally dangerous.
See Indiana Harbor Belt R. Co.
,
The paper mill defendants warn that considering land application of material containing PFAS to be an abnormally dangerous activity would create an intolerable result, where virtually all commercial activity involving PFAS would automatically be considered abnormally dangerous. In fact, whatever the merit in that outcome as a matter of policy, this case is concerned with a relatively narrow activity : the disposal of PFAS- laden sludge by spreading it on farmland. The court having rejected defendants’ at tempt to isolate that activity from the PFAS material involved in the activity, it remains to be seen if land application of PFAS-laden sludge is an abnormally dangerous activity for other reasons explained below.
Regardless, the court finds that plaintiffs have adequately pleaded a strict liability
claim for abnormally dangerous activity. Whether an activity qualifies as “ abnormally
dangerous ” in the context of strict liability is determined by considering factors listed in
the
Restatement (Second) of Torts
§ 520 (A.L.I. 1977), including the degree of risk, the
likelihood of harm, the ability to eliminate the risk with the exercise of reasonable care,
extent to which the activity is uncommon, inappropriateness of the activity to the place
where it is carried on, and the value of the activity to the community, among other factors.
Harrington v. Simms
, No. 21-CV-1182-SCD,
Here, plaintiffs have alleged that: (1) land application of waste containing PFAS is extremely hazardous, presenting a high degree of risk to property, groundwater, private water wells, and the health of those served by private wells; (2) once released, PFAS readily migrate into groundwater; (3) the paper mill defendants disposed of PFAS via land application, presenting extraordinary risks to the environment due to their persistence, bioaccumulate properties, toxicity and ability to move in their environment ; (4) land application of PFAS was inappropriate where the chemicals could enter groundwater; (5) the risks of land application of PFAS cannot be mitigated where PFAS can enter the groundwater; (6) spreading PFAS-laden waste on farmland near residential drinking water is an uncommon practice; and (7) plaintiffs water supplies were and continue to be contaminated with PFAS, exposing them to hazardous chemicals and requiring them to incur the costs of remediation. (Fourth Am. Compl. (dkt. #113) ¶¶ 155-61.) Thus, applying the Restatement factors, plaintiffs have plausibly alleged the application of sludge containing PFAS to farmland was abnormally dangerous, as an uncommon and inappropriate practice posing a high risk of harm to people or land that cannot be mitigated by reasonable care. [11]
In fairness to the paper mill defendants, there is at least some reason to doubt
whether the
Restatement
factors support strict liability. For example, plaintiffs allege that
the paper mill defendants disposed of millions of pounds of waste by spreading it on
Oneida County farmland (
id.
¶ 2), arguably suggesting that such application was common.
Further, the very existence of the Wisconsin DNR s Interim Strategy for Land Application
of Biosolids and Industrial Sludges Containing PFAS (dkt. #52-1) suggests that such an
application to the land may have been common.
[12]
Finally, the paper mill defendants point
to cases where Wisconsin courts have concluded the
Restatement
factors suggest activities
involving hazardous materials were
not
abnormally dangerous.
E.g.
,
Grube
, 213 Wis. 2d at
545-47 (use of an underground storage tank was not an abnormally dangerous activity);
Bennett v. Larsen Co.
,
Thus, while it is certainly possible that applying PFAS-laden sludge to farmland does not warrant strict liability under Wisconsin law, the court cannot say for certain absent a more developed evidentiary record. See Restatement (Second) of Torts § 520, cmt. l (A.L.I. 1977) (determination of whether an activity triggers strict liability should be based upon the facts in evidence). Thus, the court must deny the paper mill defendants’ motion to dismiss plaintiffs strict liability claim as well.
ORDER
IT IS ORDERED that:
1) Defendants Ahlstrom NA Specialty Solutions Holding Inc., Ahlstrom NA Specialty Solutions, LLC, Ahlstrom Rhinelander, LLC motion to dismiss (dkt. #50) is DENIED.
2) Defendants Wausau Paper Corp. and Wausau Paper Mills, LLC motion to dismiss (dkt. #55) is DENIED.
3) Defendant 3M s motion to dismiss (dkt. #94) is GRANTED IN PART and DENIED IN PART.
Entered this 4th day of June, 2025.
BY THE COURT:
/s/
__________________________________ WILLIAM M. CONLEY District Judge
Notes
[1] Plaintiffs’ complaint focuses on two types of PFAS, perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonic acid (“PFOS”). For ease of reference, the court will generally refer to these chemicals as “PFAS.”
[2] In resolving a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court takes all factual
allegations in the complaint as true and draws all inferences in plaintiffs favor.
Killingsworth v.
HSBC Bank Nev.
,
[3] None of the parties have asserted the applicability of a permissive or mandatory exception under § 1332(d)(3) or (4), respectively, based on a percentage of overall diversity of citizenship, and the court does not have to reach that issue.
[4] Plaintiffs also allege a subclass claim for unjust enrichment against the paper mill defendants as well as individual claims for negligence resulting in personal injury against all defendants.
[5] Defendant Wausau Paper also moved to dismiss Essity North America Inc. on personal jurisdiction grounds (dkt. #56, at 24-28), but the parties later stipulated to dismiss Essity. (Dkts. ##71, 72.)
[6] Given that Ahlstrom has submitted no evidence in support of its motion to dismiss Ahlstrom Holdings, no dispute of material fact exists to require an evidentiary hearing. Hyatt Int’l Corp. , 302 F.3d at 713 (court must hold hearing to resolve disputes of fact when personal jurisdiction is challenged under Rule 12(b)(2)).
[7] The other four factors are: (1) the injury is out of proportion to the tortfeasor's culpability; (2) in
retrospect it appears too highly extraordinary that the negligence should have resulted in the harm;
(3) allowing recovery would place too unreasonable a burden on the tortfeasor; and (4) allowing
recovery would be too likely to open the way for fraudulent claims.
Cefalu
,
[8] Here, a statute of repose would bar “a ny suit that is brought after a specified time since the defendant ” designed or manufactured a product. Statute of Repose, Black's Law Dictionary (12th ed. 2024)
[9] In fairness, 3M points out that plaintiffs’ allegations center on PFOA and PFOS , but even as to this factual question, the court is far more comfortable deciding it on a more robust record, rather than on the pleadings.
[10] 3M’s motion to dismiss plaintiffs’ negligence -based private nuisance claim appears premised on arguments that this court has already rejected ( e.g. , plaintiffs did not adequately plead 3M caused their injuries and the harm to plaintiffs was not foreseeable to 3M). (Dkt. #95, at 25 n.8.) Accordingly, the court will similarly deny 3M’s motion to dismiss plaintiffs’ negligence -based, private nuisance claim.
[11] Plaintiffs also allege that defendants Ahlstrom and Wausau Paper could have used alternative products and methods without involving the use of PFAS at Rhinelander Paper Mill and that any benefits of PFAS use were outweighed by the risks of use. (Fourth Am. Compl. (dkt. #113) ¶ 157.) However, that allegation appears to focus use of PFAS in the papermaking process, instead of the application of PFAS-laden sludge to farmland.
[12] The parties agree that the court can at least take judicial notice of the existence of the Wisconsin DNR’s “ Interim Strategy for Land Application of Biosolids and Industrial Sludges Containing PFAS .” (Dkt. #61, at 14.) See Doss v. Clearwater Title Co. , 551 F.3d 634, 640 (7th Cir. 2008) (“n arrow exception to the Rule 12(d) instructions that permits a district court to take judicial notice of matters of public record without converting a Rule 12(b)(6) motion into a motion for summary judgment ”). The parties dispute whether the court can consider the substance of the exhibits that Ahlstrom provided in support of its motion to dismiss. As explained below, however, the court is not able to resolve this issue absent discovery and further factual development.