By Brian Amaral
Boston — Chemical companies including 3M, United Technologies and Tyco Fire Products LP asked a federal judge in Massachusetts to dismiss a county’s lawsuit over their firefighting foam products, arguing that the county’s contamination allegations are premature and far too vague.
The companies told U.S. District Judge Denise Casper that Barnstable County can’t even say which firefighting foam was used, or when, or how the county was harmed when chemicals from some or all of the foams allegedly contaminated the groundwater at a firefighter training facility. That fails under two Supreme Court cases, Iqbal and Twombly, that are often cited together to bat back lawsuits that don’t allege a particular harm, a lawyer from United Technologies said.
“There is no allegation that United Technologies or any other defendant caused the county harm,” Jonathan I. Handler of Day Pitney LLP said. “They have to say that United Technologies products caused this harm, with some factual adornment. This is exactly the type of fishing expedition that Iqbal and Twombly said you couldn’t proceed on”
In January, Barnstable County sued a number of companies, including 3M, Buckeye Fire Protection Co., Chemguard, Inc., Tyco Fire Products LP, United Technologies Corp. and National Foam Inc., alleging that the companies made aqueous film forming foam, which was developed by the military and helps fight fuel fires. The product was defective and the companies failed to warn customers about potential hazards from chemicals in the foam, the county said.
The county’s suit came after it was hit with a lawsuit of its own, from a local town that hosts the firefighting academy. The town is seeking the costs of treating drinking water from the contamination. The country has also faced demands from state environmental regulators.
The foam, Barnstable County said, contains the chemicals perfluorooctanesulfonic acid, or PFOS, and perfluorooctanoic acid, PFOA. Both pose risks to humans, the county said.
The county said the foam was used at its firefighter training center and leached into its own groundwater and the groundwater of adjoining property.
Yet in part because it didn’t use the foam itself, it can’t identify which products were actually used at the firefighter training facility, the county said. It is enough at this point to allege that the companies made the type of foam that contaminated the site, the county said.
“We can’t look up that United Technologies’ substance was used on the property,” Richard Head of SL Environmental Law Group PC said, adding that it was enough to say they manufactured it.
Some of the particulars can be figured out later, the county’s lawyer said.
“At some level, there has to be some discovery as to the distribution and amount of the substance used,” Head said.
If the county waited in the state litigation to figure out which company’s foam was used when, the statute of limitations could run out, the county argued.
Barnstable County, which encompasses Cape Cod, told Judge Casper that they’d pled enough to show that the companies were negligent; in addition, the county argues that the companies should indemnify them for the consequences of the contamination, like the lawsuit.
An attorney for 3M said the indemnification claims are premature; there’s no judgment against the county in the underlying state action by the town. The county’s arguments that it would be more efficient to litigate the negligence claims along with the indemnification claims shouldn’t outweigh the fact that the alleged harm hasn’t even yet occurred, 3M’s lawyer said.
“Those claims by the county are not ripe,” said Beth A. Landes of Brewer Attorneys and Counselors.
3M is represented by Beth A. Landes of Brewer Attorneys and Counselors and John D. Stuebing of Tarlow Breed Hart & Rodgers PC.
United Technologies Corp. is represented by Jonathan I. Handler and Kennell M. Sambour of Day Pitney LLP.
National Foam Inc. is represented by Christian B.W. Stephens and Pamela C. Rutkowski of Eckert Seamans Cherin & Mellott LLC.
Buckeye Fire Equipment Co. is represented by Christopher M. Reilly of Sloane & Walsh LLP.
Tyco and Chemguard are represented by Sheila L. Birnbaum, Mark S. Cheffo, Douglas E. Fleming III and David Weinraub of Quinn Emanuel Urquhart & Sullivan LLP and Christopher A. Kenney and Lindsay M. Burke of Kenney & Sams PC.
Barnstable County is represented by Robert D. Cox Jr. and Jennifer L. Garner of Bowditch & Dewey LLP, Richard W. Head of SL Environmental Law Group PC and Kevin J. Madonna and Robert F. Kennedy Jr. of Madonna & Kennedy LLP.
The case is Barnstable County v. 3M et al, case number 1:17-cv-40002 in the U.S. District Court for the District of Massachusetts.
–Editing by Orlando Lorenzo.
The original article can be found here.