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Sullivan v. Saint-Gobain Performance Plastics Corp.

United States District Court, D. Vermont

December 27, 2019

JAMES D. SULLIVAN, LESLIE ADDISON, WILLIAM S. SUMNER, JR., RONALD S. HAUSTHOR, GORDON GARRISON, LINDA CRAWFORD, TED CRAWFORD, and BILLY J. KNIGHT, individually, and on behalf of a Class of persons similarly situated, Plaintiffs,



         In this groundwater contamination class action, Plaintiffs seek to recover the expense of medical monitoring in future years to determine whether class members who currently test positive for exposure to PFOA have contracted an illness or medical condition associated with exposure to the substance. Defendant opposes the claim on several grounds. These include arguments that the medical monitoring remedy is unavailable under Vermont law and that it is not supported by the particular facts of this case.


         The court will not repeat the statements of the facts which appear in its prior rulings on the Daubert motion to exclude expert witnesses (Doc. 300) and the ruling on the motion for class certification (Doc. 303). The facts of particular importance to the medical monitoring issue are described below.


         Following the filing of the complaint in May 2016, the defendant filed a motion to dismiss on abstention grounds (Doc. 8). The court denied that motion in December 2016. (Doc. 29.) In January 2017, the defendant filed its answer and a motion for judgment on the pleadings. (Doc. 34, 35.) The motion sought judgment for Defendant on multiple grounds, including the assertion that "the Court should not permit medical monitoring damages unless the plaintiff can demonstrate a present physical injury." (Doc. 35-1 at 14.) In May 2017, the court declined to rule on the availability of medical monitoring damages at such an early juncture:

The court defers any consideration of the potential remedy of medical monitoring to a time when the factual record is developed. Medical monitoring is not itself a cause of action. It is a form of relief. The court has insufficient information about the need and appropriateness of medical monitoring. The motion to dismiss all claims related to medical monitoring is denied without prejudice to the right of the defendant to renew the motion or to bring the issue back before the court as a motion for partial summary judgment following discovery.

(Doc. 74 at 14.)

         Discovery commenced in February 2017. (Doc. 43.) The issue of medical monitoring arose again in the context of Defendant's motion to compel the production of medical records of the individual plaintiffs. (Doc. 83.) In September, the court granted the motion to compel, only limiting the length of time for which records must be produced. (Doc. 83.) The court described the dispute over the availability of medical monitoring and again declined to issue a ruling on the scope of the potential remedy:

The discovery motion before the court provides an inadequate basis on which to make a decision which will affect the rest of the case. It is too early to make a fundamental mistake, and there is no need to do so. There are good reasons to wait before committing to one theory of the case.

(Doc. 105 at 6.) Over Plaintiffs' objection, the court permitted discovery into Plaintiffs' primary care records for 20 years with a provision for additional requests if these records provided any basis for a belief that other records might contain information about "potential exposure to toxins or treatment for conditions related to PFOA exposure." (Id. at 8.) Discovery is now virtually complete. (See Doc. 323.) The time has arrived for a ruling on the availability of a medical monitoring remedy at trial.

         In the course of a pre-trial conference in September 2019, the court ordered the parties to complete briefing on the medical monitoring issue by November 1, 2019, with Defendant's summary judgment motion due on the same date. The parties have been helpful in complying with this request. Plaintiffs have filed a timely motion for summary judgment on the medical monitoring issue. (Doc. 310.) Defendant has filed a response as well as its own motion for summary judgment. (Docs. 320, 321.) Plaintiff filed a response to Defendant's motion for summary judgment (Doc. 329.) Defendant filed a reply. (Doc. 333.)


         The issues raised by the parties and addressed by the court are:

• Does Vermont law permit the remedy of medical monitoring?
This issue is primarily addressed by the parties in the context of Plaintiffs' motion for summary judgment.
• As to medical monitoring, does the factual record permit entry of summary judgment in favor of either party?

         This issue is raised in both parties' motions for summary judgment. The court will issue a separate ruling on Defendant's motion for summary judgment regarding proof of diminution of property value.

         I. Remedy or a New Cause of Action?

         The court analyzes the availability of medical monitoring as a form of injunctive relief available (or not) under existing Vermont law, not as a new cause of action. This is consistent with the original complaint which seeks "an injunction requiring Defendant to . . . [establish and implement] a long-term medical testing protocol for Plaintiffs and Class Members to monitor their health and diagnoses at an early stage any ailments associated with exposure, inhalation or ingestion of PFOA." (Doc. 1 at 26.) It is also consistent with the defendant's position that physical injury is a necessary element of medical monitoring claims and that "[n]either the Vermont Supreme Court nor any other reported decision in Vermont has previously authorized medical monitoring damages as a form of relief for asymptomatic plaintiffs." (Doc. 35-1 at 20.)

         In the most recent round of briefing, the plaintiffs describe medical monitoring as a proposed remedy. They assert that "[c]onsistent with Stead and Vermont Supreme Court decisions, Vermont would recognize the remedy of medical monitoring." (Doc. 310 at 9.) The defendant argues against permitting medical monitoring either as a remedy for existing torts or as an independent cause of action. (Doc. 320 at 9-25.) Its principal objection is that Vermont common law requires physical injury as an element for damages in tort causes of action. This argument applies equally to existing and to as-yet-unrecognized causes of action.

         Focusing on whether medical monitoring is a permissible remedy under causes of action already recognized by the Vermont state courts is consistent with principles of federalism which guide a district court applying state law in a diversity case. The federal courts do not serve as engines for change of state common law. See City of Johnstown v. Bankers Std. Ins. Co., 877 F.2d 1146, 1152 (2d Cir. 1989) ("Our role as a federal court sitting in diversity is ... not to adopt innovative theories that may distort established state law."). There is no need to predict whether the Vermont Supreme Court would recognize a new tort theory when the same question can be answered by considering existing tort law in Vermont. The court is satisfied that analyzing medical monitoring in the light of a remedy for existing causes of action does not foreclose arguments made by either side and fairly addresses the physical injury rule upon which Defendant relies.

         II. Scope and Purpose of the Physical Injury Rule in Vermont

         Defendant's primary objection to recognition of a medical monitoring remedy arises from the application of the physical injury rule in Vermont law. Defendant argues that because the individual plaintiffs and the members of the exposure class have suffered no damages from an illness caused by exposure to PFO A, they cannot recover the cost of medical monitoring to detect its future onset.

         Vermont follows the majority rule in the United States by requiring physical injury for many torts. Exceptions include reputational torts such as libel and slander, business torts such as interference with contractual relations, and claims of professional negligence. Defendant is correct in observing that for most claims of negligence, physical injury has long been a required element.

         The physical injury rule is not a shibboleth to be honored without understanding its purpose and origin. It serves two primary functions-neither of which is relevant here. In applying the physical injury rule, it is important to consider why the rule exists and whether these purposes are at work in this case.

         First, the rule operates as one of the means to express and enforce the rule that in most circumstances, parties to a contract have no tort duty to protect one another from economic loss. See O'Connell v. Killington, Ltd., 164 Vt. 73, 665 A.2d 39 (1995) (ski area has no duty to protect the litigation interest of a skier injured in a collision on the slopes). In this setting, we know the physical injury rule as the "economic loss rule." Because parties to a contract have the opportunity to apportion the risk of economic loss through bargaining, they cannot recover in tort in the absence of physical damage. See Long Trail House Condo. Ass 'n v. Engelberth Constr., Inc., 2012 VT 80, ¶ 10, 192 Vt. 322, 59 A.3d 752 ("The economic loss rule 'prohibits recovery in tort for purely economic losses."' (quoting EBWS, LLC v. Britly Corp., 2007 VT 37, ¶ 30, 181 Vt. 5l3, 928A.2d497)).

         The distinguishing factor between economic and non-economic loss is the opportunity to allocate risk through a contract. In Walsh v. Cluba, 2015 VT 2, 198 Vt. 453, 117 A.3d 798, the Vermont Supreme Court affirmed the dismissal of claims for physical damage to leased premises because "any duty [the tenant] had concerning the subject property was established by virtue of the lease agreement." Id. ¶ 29. More commonly, physical damage is viewed as unexpected and therefore its costs are less readily distributed and assigned by contract.

         The basis for the economic loss rule is not present here. The parties are strangers to one another. They never negotiated an agreement or signed a contract. They owe no contractual duty to one another. But it would violate basic principles of negligence and nuisance law to state that Defendant owes no tort duty to prevent harm to its neighbors. Particular elements of damage may be disputed, but this is not a case like Walsh v. Cluba in which the parties' contract preempted any separate duty in tort. There is no strong policy reason to extend to these defendants the ex ante immunity from tort liability for economic harm which the law provides for parties to a contract.

         Vermont cases applying the economic loss rule are generally confined to claims between parties to a contract. The economic loss cases cited by defendant in its briefing include Wentworth v. Crawford & Co., 174 Vt. 118, 126, 807 A.2d 351, 357 (2002) (rehabilitation services contract) ("[O]ur caselaw prohibits a claimant from seeking damages for contractual losses through tort law."); O'Cornell, 164 Vt. at 77, 665 A.2d at 42 (ski ticket) ("Negligence law does not generally recognize a duty to exercise reasonable care to avoid intangible economic loss to another unless one's conduct has inflicted some accompanying physical harm."); Breslauer v. Fayston Sch. Dist., 163 Vt. 416, 422, 659 A.2d 1129, 1132 (1995) (employment contract) ("If we find a duty here, we create a new tort theory available in any breach of contract case where an economic entity acts through employees."). See also Springfield Hydroelectric Co. v. Copp, 172 Vt. 311, 779 A.2d 67 (2001) (power purchase contract); Gus' Catering, Inc. v. Menusoft Sys., 171 Vt. 556, 762 A.2d 804 (2000) (purchase of software package). These cases have little application to this case in which there was no contract.

         A second purpose of the physical injury rule is to limit cases of emotional distress which could otherwise become speculative and excessive in number. Like most states, Vermont imposes a "zone of danger" requirement on such claims. Vaillancourt v. Med. Ctr. Hosp. of Vt., Inc., 139 Vt. 138, 425 A.2d 92 (1980). In the absence of a physical injury requirement, anyone witnessing an accident, even perhaps later on television, might bring a lawsuit against the at-fault party for emotional distress. The rule serves to limit potential liability to people who suffered injury or were close enough to be at risk. Like the economic loss rule, it can be expressed as a rule of duty excluding any obligation to protect observers and bystanders not in the zone of danger. This is not a line of cases on which Defendant relies. But this second purpose of the physical injury rule illustrates again that the rule exists to serve policy purposes not present in this case.

         III. Definition of Physical Injury

         One reason the court is cautious about applying the physical injury rule to bar the medical monitoring remedy is that its application is not consistent with the two purposes for which Vermont courts have commonly invoked the rule. Supra, Part II. A second reason is that in the absence of case law defining "physical injury," it is very likely that the Vermont Supreme Court will adopt the definition developed in section 15 of the Restatement (Second) of Torts. The injury claimed by members of the exposure class satisfies this definition.

         In Chapter 2 of the Restatement ("Intentional Invasions of Interests in Personality"), the drafters identified five "interests" in physical safety and freedom for which the common law provides some measure of protection. The first and most highly protected is "the interest in freedom from harmful bodily contacts."[1] The introductory note to Chapter 2 states that this interest "is protected not only against intentional invasion but against invasions caused by negligence [and activities giving rise to strict liability.]"

         Section 15 of the Restatement defines "bodily harm" in uncompromising terms: "Bodily harm is any physical impairment of the condition of another's body, or physical pain or illness." Comment a develops the point further: "There is an impairment of the physical condition of another's body if the structure or function of any part of the other's body is altered to any extent even though the alteration causes no harm."

         The illustration offered by the reporters is the painless and beneficial removal of a wart by a doctor without permission. In permitting a claim for bodily harm based upon any demonstrable alteration of an individual's body, the Restatement establishes a low threshold for the physical injury rule. Were Vermont to adopt the Restatement position, there can be little doubt that a plaintiff could recover damages upon proof that defendant was responsible for the introduction of a persistent chemical into his body even if the chemical had not caused present illness or disability.

         The Vermont Supreme Court has frequently followed the Restatement (Second) of Torts.[2]It seems likely that it will do so in the case of § 15. The Court is unlikely to extend the limitation of tort recovery which gives rise to the physical injury to defendants who are alleged to have contaminated ground water. By statute through the Groundwater Protection Act, 10 V.S.A. § 1390 et seq., and at common law, liability for damage to ground water has long been recognized in Vermont law. It is more likely that the Vermont Supreme Court will follow the definition of bodily harm developed in the Restatement and apply it to latent injuries caused by chemical exposure. By defining bodily harm to include any alteration to a person's body, the Restatement includes changes such as abnormal blood serum results showing the presence of an unusual and potentially harmful chemical.

         The court must also consider whether the Vermont Supreme Court will follow the American Law Institute in subsequently seeking to remove the medical monitoring issue from its analysis of physical harm. The Restatement (Second) is not the last word on this particular issue.

         The Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 4 defines "physical harm" as "physical impairment of the human body ("bodily harm").. .Bodily harm includes physical injury, illness, disease, impairment of bodily function, and death." This definition does not address whether "impairment" includes the asymptomatic structural alteration also recognized as a bodily injury in the Restatement (Second). The other shoe drops in the final paragraph of Comment C to § 4:

A number of courts have addressed claims seeking payment for medical monitoring of persons who had been exposed to risk-creating agents or behavior but who had not suffered any current physical harm at the time of suit. Since those cases do not involve claims for physical harm, they are beyond the scope of the physical-harm Chapters in this Restatement.

         The purpose of the change is made explicit in the Reporter's Note. Comment C states that "§ 4 of this Restatement does not include Comment a of the Restatement Second of Torts § 15, which states that there is bodily impairment whenever 'the structure... of any part of the ... body is altered to any extent even though the alteration causes no other harm." The Reporters connect this change to "[a]n unfortunate and aberrational exception to the self-correction of small or trivial harms explained in this Comment [represented by] asbestos claims by plaintiffs who suffer no clinical symptoms but who have abnormal lung X-rays, a condition known as pleural plaque." The Comment concludes the discussion by identifying a range of cases and academic writing on the issue.

         The court views the Restatement (Third) as equivocal in its application to this case. A primary purpose of the change in the definition of "bodily injury" was to exclude claims of emotional distress based upon minor and asymptomatic alterations of the body. The example provided for a physical alteration is trivial: brief tanning or toning of the body (Reporters' Note to § 4, Comment C). This case includes no claim for emotional distress. These would be damages for personal injury which are excluded from the class action.

         In the case of medical monitoring as a result of toxic exposure, the reporters to Restatement (Third) cited cases on both sides of the argument. While it is fair to say that the definition in § 4 of the Restatement (Third) of Torts: Physical and Emotional Harm represents a more nuanced position than the simpler proposition in the Restatement (Second) that any alteration of the body may constitute an injury, it would exaggerate the ALI position to say that it excluded recovery for medical monitoring. Rather, the revised definition chooses not to provide a definitive answer to the question of whether medical monitoring is appropriate for asymptomatic exposure. The issue on which § 4 (Restatement(Third) differs from the stronger position in § 15 (Restatement)(Second) is whether all cases of bodily alteration are bodily injuries. Trivial changes such as minor sunburn are not. As it concerns medical monitoring, the definition in § 4 of the Restatement(Third) no longer provides guidance because of the reporters' concerns about the proliferation of asbestos claims and other mass torts. Their retreat on this issue seems unlikely to strand Vermont plaintiffs exposed to environmental contamination without a remedy in Vermont law.

         A single federal district court case in Vermont has considered these questions. In Stead v. F.E. Myers Co., 785 F.Supp. 56 (D. Vt. 1990), the district court denied a motion in limine to exclude expert testimony concerning an increased risk in cancer for homeowners who drank water contaminated by oil which leaked from their submersible pump. As the court wrote in that case:

[Plaintiffs] seek to offer proof of an increased risk of cancer that, while admittedly unquantifiable, is substantial enough to require medical monitoring for many years, the cost for which they seek recovery. When offered for this purpose, quantification of the increased risk to a reasonable degree of medical certainty is not required.

Id. at 57.[3] Almost three decades ago, the Stead decision supports the availability of a medical monitoring remedy. The decision recognized the necessary limits of what can be known and what can be proved in the case of an asymptomatic plaintiff. In permitting the case to proceed in the absence of testimony about the specific increase in the cancer risk to the homeowners, the court showed the way towards the adoption of a standard of general causation in toxic exposure cases. Stead is consistent with subsequent decisions in other states which permit the medical monitoring remedy upon proof of an increased risk to an exposed population.

         IV. Other Areas of Guidance-Equitable Remedies Under Vermont Law

         With little direct guidance available from toxic contamination cases within Vermont, there are three places to turn for assistance in predicting the direction of Vermont law concerning medical monitoring. One is the law of equitable remedies in Vermont. The Vermont Supreme Court has described these remedies as flexible in light of changing conditions. "Courts may exert equitable powers based upon common-law, statutory, or constitutional rights, or upon judicial acknowledgement of public-policy considerations establishing an as-yet-unrecognized legal right." Titchenal v. Dexter, 166 Vt. 373, 377, 693 A.2d 682, 684 (1997). Equitable remedies are available to fill gaps and shortcomings in the law in particular cases. In re Beach Props., Inc., 2015 VT 130, ¶ 23, 200 Vt. 630, 133 A.3d 854 ("The essence of equity is that it applies only in those exceptional cases 'wherein the law (by reason of its universality) is deficient.'" (quoting Bucklin v. Beals, 38 Vt. 653, 662 (1866))); MacGowan v. Gaines, 127 Vt. 477, 481, 253 A.2d 121 (1969) ("Courts of equity are created ... to reach and correct mistakes in which courts of law have no jurisdiction."). The courts exercise discretion in fashioning remedies which meet current needs and conditions. Huard v. Henry, 2010 VT 43, 188 Vt. 540, 999 A.2d 1264 (mem.) (affirming an injunction requiring property owners to comply with amendments to wastewater permit). Injunctive relief may be available in cases in which money damages cannot address the loss. Appeal of Gadhue, 149 Vt. 322, 326, 544 A.2d 1151, 1153 (1987) ("Thus, plaintiffs ability to request a mandatory injunction was in no way impaired by the absence of special damages.").

         The equitable powers of our courts are available to address important public policy concerns, especially those which have not been resolved through statutory or common-law damages remedies. The equitable authority is interstitial. It fills gaps and repairs unfairness in particular cases. As the Tichenal case demonstrates, the substantive basis for an equitable ruling may be drawn from existing legal rights or from public policy which supports the recognition of a new right. These principles support the extension of the ...

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