On January 31, 2014, the Middle District of Florida dismissed, without prejudice, a medical monitoring claim in a spray polyurethane foam (SPF) insulation products liability class action. Gibson v. LaPolla Indus., Inc., et al., No. 6:13-cv-646-Orl-36KRS (Dkt. 48). The court held that the plaintiffs did not “specify any single serious condition or even reasonably specific group of serious conditions that they are at a significantly increased risk of contracting as a result of the defendants’ conduct.” Citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007), the Middle District found that the plaintiffs’ allegations of increased risk of contracting “other neurological issues and respiratory issues” were “so general that they fail to ‘nudge’ plaintiffs’ medical monitoring claim across the line from conceivable to plausible” and, therefore, dismissed the claim without prejudice. In doing so, the court agreed with LaPolla’s argument that the claim should be dismissed because plaintiffs merely recited the elements of a medical monitoring claim as set forth in Petito v. A.H. Robins Co., Inc., 750 So. 2d 103, 106-07 (Fla. 3d DCA 1999).
In support of the claim, the plaintiffs had alleged that they and other class members “have developed a significantly increased risk of contracting serious latent diseases, including but not limited to headaches and other neurological issues and eye, nose, and throat irritations as well as respiratory issues” as a result of their exposure to SFP insulation. They further alleged that exposure can cause people to become sensitized, or hyper-sensitive, to VOCs and other toxins off-gassed from SPF, causing them to suffer severe reactions when exposed to even trace amounts. Plaintiffs did not allege, however, that they have become sensitized to the substances at issue, or that the defendants’ conduct caused them to become sensitized.
This dismissal comes on the heels of other fairly recent developments in connection with medical monitoring claims in SFP insulation litigation. In October 2013, the Eastern District of Pennsylvania dismissed, with prejudice, the medical monitoring claim in a class action. Slemmer v. McLaughlin Spray Foam Insulation, Inc., No. 2:12-cv-06542-JD (Dkt. 30). And, in November 2013, the plaintiffs in a Michigan class action withdrew their medical monitoring claim. Stegink v. Demilec (USA) LLC, et al., No. 1:12-cv-01243-JTN (Dkt. 47). Stay tuned for further developments.