TOWN OF WESTPORT, Plaintiff, Appellant, WESTPORT COMMUNITY SCHOOLS, Plaintiff,
MONSANTO COMPANY; SOLUTIA, INC.; PHARMACIA CORPORATION, Defendants, Appellees.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge]
Burke Pickrel, with whom Richard M. Sandman, Baron &
Budd, P.C., and Rodman, Rodman & Sandman, PC, were on
brief for appellant.
M. Goutman, with whom Richard L. Campbell, Kim Kocher and
White and Williams LLP were on brief, for appellees.
Lynch, Stahl, Barron, Circuit Judges.
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.
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.
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.
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.
this case comes to us following Pharmacia's motion for
summary judgment, we recite the facts in the light most
favorable to Westport.
Overview of PCB-Containing Plasticizers
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
Supply Chain and Warnings
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.
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.
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
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.
warnings were only given to Monsanto's direct customers,
and not to end users.
Studies of Health Effects
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 ...