First Circuit Holds Foreseeability of Health Risk Is Standard For Failure To Warn Even Though Claim Is For Property Remediation, And Bulk-Selling Chemical Manufacturer Had Post-Sale Duty To Warn Only Direct Customers Even If End Users Could Be Traced -
In Town of Westport v. Monsanto, 877 F.3d 58 (1st Cir. 2017), a municipality sued manufacturers of polychlorinated biphenyls (“PCBs”) in the United States District Court for the District of Massachusetts for breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability) and negligence based on defective design and failure to warn after plaintiff discovered PCBs— odorless and colorless alleged human carcinogens sometimes used as plasticizers— in caulk at a middle school. The district court granted summary judgment against all claims, ruling, among other things, that the town had not shown health risks to building users were reasonably foreseeable at the time of the PCBs’ sale, and if defendants had any post-sale duty to warn they adequately discharged it by warning their bulk caulk manufacturer customers of possible toxic effects in their workers.
Please see full publication below for more information.