Products Liability Law Daily Wrap Up, COMPLAINTS—CHEMICAL PRODUCTS—D.N.J.: New Jersey borough sues 3M over groundwater contamination, (Sep 14, 2020)

By Kathleen Bianco, J.D.

Complaint seeks compensatory and punitive damages for property losses caused by the unlawful release of PFAS into the public drinking water supply.

The Borough of Hopatcong, New Jersey, filed a complaint against 3M Company for damages arising from the intentional, knowing, reckless, and/or negligent acts and/or omissions of the company in connection with the contamination of the borough’s public drinking water supply with the toxic substances PFOS (perfluorooctanesulfonic acid) and PFOA (perfluorooctanoic acid), which fall within a class of substances known as per- and polyfluoroalkyl substances (PFAS). The complaint, which alleges negligence, negligent failure to warn, strict liability failure to warn, public and private nuisance, and trespass, requests that the company be ordered to pay all damages suffered by the borough, including, but not limited to, investigation, clean-up, abatement, remediation, engineering, and treatment and monitoring costs incurred by the borough, or for which the borough is or was legally responsible (Borough of Hopatcong, New Jersey v. 3M Co., September 11, 2020).

The borough alleges that 3M marketed, developed, manufactured, distributed, released, trained users of, produced instructional materials for, sold, and/or otherwise handled and/or used PFAS in such a way as to result in the contamination of the public drinking water supplies. The complaint goes on to assert that 3M knew or should have known that PFAS is a toxin and is persistent when released into the environment and presents significant risks to groundwater, drinking water supplies, and human health, and yet the company continued to market and sell PFAS without warning users or others of the risks of PFAS to the environment and to human health. The borough further contends that 3M’s acts and/or omissions with regard to the safety of its products were done maliciously or with knowledge of a high degree of probability of harm and reckless indifference to the consequences to persons who foreseeably might be harmed by the company’s actions or inactions.

Negligence. The borough asserts that 3M had breached its duty to exercise reasonable care in its design, engineering, manufacture, development, fabrication, testing, release, training of users of, production of informational materials about, handling, selling, use, and/or distribution of PFAS, including a duty of care to ensure that PFAS did not pollute the environment, thereby contaminating the borough’s public drinking water supply.

Negligent failure to warn. The borough further contends that 3M had—and breached—a duty to warn of the dangers associated with PFAS. As a direct and proximate result of that breach, the borough suffered significant injury due to its drinking water supply being contaminated by PFAS.

Strict liability failure to warn. The borough also asserts that the manufacturer had a duty to provide adequate warnings to users and the public of the risks posed by PFAS. Its failure to do so resulted in property damage requiring ongoing investigation, remediation, treatment, and monitoring.

Public and private nuisance. The borough claims that 3M’s actions constitute a nuisance in that the contamination of groundwater and drinking water is injurious to public health, is indecent or offensive to the senses, and is an obstruction to the borough’s free use of its property, so as to interfere with the comfortable enjoyment of life or property. In addition, the contamination of the groundwater and public drinking water supply significantly affects, at the same time, a considerable number of people in an entire community.

Trespass. Finally, the borough asserts that the invasion and presence of the PFAS in its public drinking water supply was and continues to be without permission or authority from the borough. Thus, the presence and continuing presence of PFAS in the borough’s public drinking water supply constitutes a continuing trespass.

Relief sought. The borough demands a jury trial and seeks: (1) judgment in its favor and against the manufacturer on each count; (2) compensatory damages for, among other things, the cost of investigation, clean-up, abatement, remediation, and treatment and monitoring; (3) an award of attorney fees and costs; (4) punitive damages; and (5) any other relief deemed appropriate by the court.

The case is No. 2:20-cv-12551-CCC-JBC.

Attorneys: Michael A. London (Douglas & London, Pc) for Borough of Hopatcong.

Companies: 3M Co.; Borough of Hopatcong

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