Town of Westport v. Monsanto Co.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge]

          Carla Burke Pickrel, with whom Richard M. Sandman, Baron & Budd, P.C., and Rodman, Rodman & Sandman, PC, were on brief for appellant.

          Thomas M. Goutman, with whom Richard L. Campbell, Kim Kocher and White and Williams LLP were on brief, for appellees.

          Before Lynch, Stahl, Barron, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         This is an appeal from the entry of judgment for the defendants in a products liability case brought by the plaintiff, Town of Westport ("Westport"). The defendants are Monsanto Company, Solutia, Inc., and Pharmacia Corporation (collectively "Pharmacia"). Westport filed suit under Massachusetts law against Pharmacia, seeking to recover the cost of remediating Westport Middle School ("WMS") after discovering polychlorinated biphenyls ("PCBs") -- chemicals that are hazardous above certain concentrations -- in the school building.

         When WMS was built in 1969, the contractor, who is not a defendant in this suit, used caulk that contained PCBs. Although Monsanto did not make the caulk at issue, it sold plasticizers --a component of caulk -- to the third-party manufacturer who did. Westport alleges that Pharmacia is liable for what it claims to be "property damage" caused by the "PCB contamination" at WMS.

         The district court entered judgment against Westport on all alleged counts of tort liability. On appeal, Westport challenges only the entry of judgment against its (1) breach of warranty and (2) negligent marketing claims.

         We affirm the district court's grant of summary judgment. Monsanto did not breach the implied warranty of merchantability because it was not reasonably foreseeable in 1969 that there was a risk PCBs would volatilize from caulk at levels requiring remediation -- that is, levels dangerous to human health. And as a matter of state law, a negligent marketing claim cannot be maintained independent of a design defect claim on these facts.

         I. Background

         Because this case comes to us following Pharmacia's motion for summary judgment, we recite the facts in the light most favorable to Westport.^[1]

         A. Overview of PCB-Containing Plasticizers

         Monsanto began to manufacture and sell PCB mixtures, trademarked as Aroclors, in 1935. Aroclors were a popular plasticizer -- an additive used in building materials to increase fluidity -- because they were viscous, thermally stable, and nonflammable. By August of 1970, however, Monsanto pulled PCB-containing Aroclors from the market because of their environmental impact.

         1. Supply Chain and Warnings

         Before August 1970, Monsanto sold PCB-containing Aroclors to formulators of building materials, who then incorporated them into various end products. For "major customers" and "major applications, " Monsanto likely sold Aroclors in bulk, in 55-gallon drums. Some of Monsanto's direct customers were companies that manufactured end products, such as paint and caulk, while others produced polymer components of end products.

         Monsanto continually updated its direct customers with information about the chemical properties and health effects of its PCB mixtures. For instance, the record includes Monsanto's technical bulletins for Aroclor plasticizers from 1943, 1955, 1966, and 1970. These bulletins included information about the plasticizers' rate of vaporization, as well as warnings about their toxicity and environmental impact.

         Beginning in 1937, Monsanto warned customers that experimental studies in animals showed that "prolonged exposure to Aroclor vapors evolved at high temperatures or by repeated oral ingestion" would "lead to systemic toxic effects." These warnings were present in all subsequent technical bulletins. The bulletins also prescribed precautions for industrial workers, such as ventilation and protective gear.

         In addition, Monsanto warned its customers about the environmental hazards of PCBs. In its March 1970 bulletin, Monsanto explicitly advised against certain uses of Aroclors:

Some specific applications where the use of PCB should definitely be avoided are in paints and sealants for swimming pools, paints and waterproofing agents in silos and other buildings where food products for humans or animals are stored, and as a component of any container of wrapping used in packaging food products.

         These warnings were only given to Monsanto's direct customers, and not to end users.

         2. Studies of Health Effects

         Between 1934 and 1972, Monsanto sponsored 300 studies on the health effects of PCB exposure through inhalation and skin contact. These included skin patch and inhalation tests, as well as studies of the long-term reproductive and toxicological effects of PCBs in lab animals. In 1938, one study showed that PCBs were linked to liver toxicity. However, a series of studies in the 1950s, sponsored by Monsanto, and conducted by Dr. Treon, demonstrated that "at ordinary temperatures, " the hazard of inhaling PCBs from Aroclors "may well be slight or entirely absent." These studies concluded that the Aroclors tested only ...