Case 1:19-cv-01672-MN-JLH Document 135 Filed 08/04/22 Page 1 of 27 PageID #: 2546
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`DORIS BANKS, CANDY CAPORALE,
`BRUCE DAVIS, GENE SULLENBERGER,
`and CHRISTINE WOOTTEN, for themselves
`and on behalf of all others similarly situated,
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`C.A. No. 19-1672-MN-JLH
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`Defendants.
`________________________________________ )
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`Plaintiffs,
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`v.
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`E.I. DU PONT DE NEMOURS AND
`COMPANY, THE 3M COMPANY (f/k/a
`Minnesota Mining and Manufacturing, Co.),
`ATOTECH USA, LLC, MACDERMID, INC.,
`PROCINO PLATING, INC., a/k/a PROCINO
`ENTERPRISES, a/k/a PROCINO, and BLADES
`DEVELOPMENT LLC,
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`REPORT AND RECOMMENDATION
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`In this proposed class action, Plaintiffs allege that Defendants caused the groundwater in
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`Blades, Delaware to be contaminated with perfluorinated compounds, resulting in harm to the class
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`members’ health and property. Plaintiffs’ First Amended Complaint (“FAC”) (D.I. 44) alleges
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`that two electroplating facilities in Blades, Delaware (which are now owned by Defendants
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`Procino Plating, Inc. (“Procino”) and Blades Development LLC (“Blades Development”)) used
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`products containing perfluorinated chemicals (“PFCs”)—including perfluorooctane sulfonate
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`(“PFOS”) and perfluorooctanoic acid (“PFOA”)—manufactured and sold by Defendants Atotech
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`USA, LLC (“Atotech”) and MacDermid, Inc. (“MacDermid”). The FAC further alleges that
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`Defendants E.I. DuPont de Nemours and Company (“DuPont”) and The 3M Company (“3M”)
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`manufactured and sold PFOS and PFOA used to produce PFC-containing products sold by Atotech
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`and MacDermid, including products used in the Blades electroplating facilities. The FAC alleges
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`various causes of action.
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`Defendant Procino answered the FAC, but the other five Defendants filed separate motions
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`to dismiss for failure to state a claim. (D.I. 106; D.I. 109; D.I. 110; D.I. 113; D.I. 115.) For the
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`reasons set forth below, I recommend that each of the motions be GRANTED-IN-PART and
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`DENIED-IN-PART. Plaintiffs should be granted leave to amend their complaint within 21 days
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`to address the deficiencies.
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`I.
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`BACKGROUND
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`The following facts are taken from the allegations in the FAC, which I assume to be true
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`for purposes of resolving the motions to dismiss.1
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`PFOA and PFOS are human-made chemicals that belong to a class of fluorine-containing
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`compounds called perfluorinated chemicals (“PFCs”). (FAC ¶¶ 4, 7, 13.) PFOA and PFOS are
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`used in the production of commercial and consumer nonstick cookware and in the hard chrome
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`plating process. (Id. ¶ 7.)
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`Defendant 3M began producing PFOA in 1947 and PFOS no later than 1948. (Id. ¶ 5.) It
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`ceased making both around 2000. (Id. ¶ 14.) Other companies have also manufactured PFOA and
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`PFOS in the United States, including Defendant DuPont, which began using PFOA in the 1950s
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`and began manufacturing PFOA when 3M stopped, around 2000. (Id. ¶¶ 6, 15, 16.)
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`PFOA and PFOS are extremely stable and can remain in the environment for years. (Id.
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`¶¶ 7–9, 146–49.) Studies show associations between human exposure to PFOA and PFOS and
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`negative health effects, which can arise months or years after exposure. (Id. ¶¶ 8–12, 150–61.)
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`1 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
`2
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`According to Plaintiffs, 3M and DuPont have been aware of potential health risks
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`associated with PFOA and PFOS exposure for decades. (Id. ¶¶ 26–100.) 3M and DuPont have
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`also known for decades that PFOA and PFOS can leach into and move rapidly in groundwater and
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`that they can contaminate drinking water supplies. (Id. ¶¶ 101–19.)2
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`Defendant Atotech is a surface-finishing solutions provider that manufactured and sold
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`products containing PFOA and PFOS, including Fumetrol-140, a fume suppressant. (Id. ¶ 17.)
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`MacDermid is a chemical products provider that manufactured and sold products containing PFOA
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`and PFOS, including Barrett Snap, a wetting agent. (Id. ¶ 18.) Atotech and MacDermid knew
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`about studies, reports, and publications demonstrating that PFOA and PFOS were associated with
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`health risks. (Id. ¶ 95.) The FAC alleges, “[u]pon information and belief,” that “PFOS and PFOA
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`manufactured by 3M and DuPont was used in the production of mist and fume suppressants,
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`fluorosurfactants, wetting agents and emulsifiers containing PFOA and PFOS . . . , including
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`Fumetrol-140, Barrett Snap, and cadmium fluoroborate[, a PFOS-containing compound used in
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`the electroplating process].” (Id. ¶¶ 19, 126, 134.)
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`Defendant Procino began operating an electroplating business in Blades, Delaware in
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`1985.3 (Id. ¶¶ 7, 122.) Procino used cadmium fluoroborate in its operations. (Id. ¶ 126.) In 2007,
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`the Environmental Protection Agency (EPA) and the Delaware Department of Natural Resources
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`and Environmental Control (DNREC) conducted an inspection of Procino and discovered that it
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`2 The FAC contains pages of factual allegations purportedly demonstrating 3M’s and
`DuPont’s knowledge of the health risks and environmental contamination associated with PFOA
`and PFOS. The precise details of those factual allegations are not particularly relevant to the
`parties’ arguments, so I do not recite them here.
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`3 “Electroplating is a process of depositing a layer of a metal such as chromium, nickel, or
`copper onto another material for abrasion and wear resistance, corrosion protection, and
`decoration.” (FAC ¶ 120.)
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`was also storing and using Fumetrol-140 and Barrett Snap. (Id. ¶ 127.) In 2013, Procino pleaded
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`guilty to illegally storing waste and violating the Clean Water Act from December 2007 to May
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`2010. (Id. ¶ 128.)
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`Peninsula Plating operated a plating facility in Blades, Delaware from 1993 to 1995. (Id.
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`¶¶ 7, 130.) Peninsula used cadmium fluoroborate in its electroplating operations. (Id. ¶ 131.)
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`Peninsula had a “history of noncompliance with industrial waste discharge permits” and was
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`subject to an EPA removal action in 1995. (Id. ¶ 130–31.)
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`The FAC alleges, “[u]pon information and belief,” that Procino and Peninsula used PFC-
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`containing products that were manufactured, distributed and supplied by Defendants 3M, DuPont,
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`Atotech, and MacDermid. (Id. ¶ 134.) In 2007, Defendant Blades Development acquired the
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`property formerly used by Peninsula. (Id. ¶ 132.)
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`The Procino facility and the former Peninsula facility are close to the Nanticoke River and
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`municipal and private water supply wells for Blades. (Id. ¶ 136.) In 2018, EPA and DNREC
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`tested the water supply in Blades and discovered that the private and public wells contained
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`concentrations of PFCs that exceeded the EPA’s Health Advisory Level. Samples collected from
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`Procino wells contained PFOS concentrations more than 40 times the Health Advisory Level. (Id.
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`¶ 142.) On February 8, 2018, DNREC and the Delaware Division of Public Health began warning
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`the residents of Blades not to drink from the town’s municipal wells. (Id. ¶ 143.)
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`The FAC alleges, “[u]pon information and belief,” that “Peninsula and Procino stored,
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`used, disposed and discharged PFOA and PFOS into the ground, water, groundwater, and
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`environment.” (Id. ¶ 135.) The FAC further alleges, “[u]pon information and belief,” that PFOA
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`and PFOS have been released and continue to be released from the property that housed the
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`Peninsula facility, due to Peninsula’s handling, use, storage and disposal of PFC-containing
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`products, and that Blades Development has failed to contain or prevent the release. (Id. ¶ 132.)
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`Plaintiffs are residents of Blades. (Id. ¶¶ 182–86.) Plaintiffs have been “exposed to
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`elevated levels of PFCs and they have bioaccumulated in [Plaintiffs’] blood.” (Id.) Plaintiffs also
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`allege that PFCs have entered their real property. (Id.) Plaintiffs allege that they have suffered, or
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`are at increased risk of suffering, from adverse health effects caused by PFC exposure. (Id.)
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`II.
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`PROCEDURAL HISTORY
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`Plaintiffs propose to represent a class comprising the approximately 1,600 residents of
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`Blades, as well as individuals outside of Blades that receive their drinking water from private wells
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`that were contaminated with PFOA and PFOS from the Procino and Peninsula facilities. (Id.
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`¶ 145.)
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`Plaintiffs filed their original complaint on May 17, 2019, in Delaware Superior Court.
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`Banks v. E.I. DuPont de Nemours and Company, et al., No. S19C-05-024 ESB. Defendant 3M
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`removed to this Court on September 6, 2019. (D.I. 1.) Plaintiffs filed a First Amended Complaint
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`on February 7, 2020. (D.I. 44.) The FAC contains eight counts:
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`• Count I: negligence against Defendant Procino (id. ¶¶ 195–210);
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`• Count II: negligence against Defendants 3M, DuPont, Atotech, and MacDermid
`(id. ¶¶ 211–33);
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`• Count III: medical monitoring against all Defendants (id. ¶¶ 234–40);
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`• Count IV: breach of implied warranty against Defendants 3M, DuPont, Atotech,
`and MacDermid (id. ¶¶ 241–45);
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`• Count V: trespass against Defendants Procino and Blades Development (id. ¶¶ 246–
`60);
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`• Count VI: private nuisance against Defendants Procino and Blades Development
`(id. ¶¶ 261–67);
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`• Count VII: fraudulent concealment against Defendants 3M, DuPont, Atotech, and
`MacDermid (id. ¶¶ 268–79); and
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`• Count VIII: conspiracy against Defendants 3M, DuPont, Atotech, and MacDermid.
`(Id. ¶¶ 280–85).
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`The FAC also requests punitive damages. (Id. ¶¶ 286–89.) Defendant Procino answered the FAC.
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`(D.I. 55.) The remaining defendants (the “Moving Defendants”) filed separate motions to dismiss
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`for failure to state a claim. (D.I. 65; D.I. 67; D.I. 69; D.I. 71; D.I. 81.)
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`While the motions to dismiss were pending, the Court had questions about the existence of
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`subject matter jurisdiction. In accordance with its independent duty to satisfy itself of its subject
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`matter jurisdiction, the Court denied the motions to dismiss for failure to state a claim, without
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`prejudice to renew, and requested supplemental briefing on subject matter jurisdiction. (D.I. 86.)
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`After receiving briefing and hearing argument, the Court concluded that it had subject matter
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`jurisdiction and should exercise it. Banks v. E.I. DuPont de Nemours & Co., No. 19-1672-MN-
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`JLH, 2021 WL 7209361 (D. Del. Dec. 2, 2021).
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`Subsequently, the Moving Defendants renewed their motions to dismiss for failure to state
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`a claim. (D.I. 106; D.I. 109; D.I. 110; D.I. 113; D.I. 115.) This Report and Recommendation
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`addresses all five pending motions.
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`III. LEGAL STANDARDS
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`A defendant may move to dismiss a complaint under Federal Rule of Civil Procedure
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`12(b)(6) for failure to state a claim. “To survive a motion to dismiss, a complaint must contain
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`sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
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`Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
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`is plausible on its face when the complaint contains “factual content that allows the court to draw
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`the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
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`Twombly, 550 U.S. at 556). A possibility of relief is not enough. Id. “Where a complaint pleads
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`facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
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`possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
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`In determining the sufficiency of the complaint under the plausibility standard, all “well-
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`pleaded facts” are assumed to be true, but legal conclusions are not. Id. at 679. “[W]hen the
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`allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic
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`deficiency should be exposed at the point of minimum expenditure of time and money by the
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`parties and the court.” Twombly, 550 U.S. at 558 (quotation omitted).
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`IV. DISCUSSION
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`Each Moving Defendant asks the Court to dismiss each claim asserted against it. I take
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`the counts in order.4
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`A.
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`Count II: negligence against Defendants 3M, DuPont, Atotech, and
`MacDermid
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`Count II is a state law negligence claim against 3M, DuPont, Atotech, and MacDermid.
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`Plaintiffs allege, essentially, that 3M and DuPont (collectively, the “Manufacturer Defendants”)
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`sold PFOS and PFOA to Atotech and MacDermid (the “Supplier Defendants”) and others, who in
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`turn incorporated it into products supplied to Procino and Peninsula. Procino and Peninsula used
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`those PFOS- and PFOA-containing products in their plating operations and discharged PFOS- and
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`PFOA-containing waste into the environment, where it made its way into the water supply. The
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`FAC alleges, among other things, that the Manufacturer and Supplier Defendants knew how
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`PFOA- and PFOS-containing products would be used and stored at facilities like Procino and
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`Peninsula and that it was foreseeable that the discharge of PFOS- and PFOA-containing waste
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`4 Count I names only Defendant Procino. Procino has not moved to dismiss.
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`would contaminate the environment and endanger individuals, like Plaintiffs, who lived in the area
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`and consumed the drinking water. (FAC ¶¶ 212–30.) According to the FAC, the Manufacturer
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`and Supplier Defendants “knew or should have known that safety precautions would be required
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`to prevent the release of PFOA and PFOS into the surrounding environment, groundwater, and
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`drinking water supplies” but they failed to notify the downstream users of their PFC-containing
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`products “about the danger that PFOA and PFOS would enter the environment and groundwater.”
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`(FAC ¶¶ 219–20, 226.)
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`1.
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`Duty
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`The Manufacturer and Supplier Defendants make a number of arguments in support of
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`dismissing the negligence claim, but their primary argument is that the FAC fails to plausibly
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`allege that they owed a duty to Plaintiffs. (D.I. 107 at 11; D.I. 111 at 7–10; D.I. 112 at 10–11; D.I.
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`114 at 5–7.) I disagree.
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`The Delaware Supreme Court has adopted § 388 of the Restatement (Second) of Torts,
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`which concerns the duty of a manufacturer to warn users of the dangerous nature of its products.
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`Ramsey v. Ga. S. Univ. Advanced Dev. Ctr., 189 A.3d 1255, 1261 (Del. 2018). It provides:
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`One who supplies directly or through a third person a chattel for
`another to use is subject to liability to those whom the supplier
`should expect to use the chattel with the consent of the other or to
`be endangered by its probable use, for physical harm caused by the
`use of the chattel in the manner for which and by a person for whose
`use it is supplied, if the supplier
`(a) knows or has reason to know that the chattel is or is likely
`to be dangerous for the use for which it is supplied, and
`(b) has no reason to believe that those for whose use the
`chattel is supplied will realize its dangerous condition, and
`(c) fails to exercise reasonable care to inform them of its
`dangerous condition or of the facts which make it likely to
`be dangerous.
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`Restatement (Second) of Torts § 388 (Am. Law Inst. 1965). Importantly, it states that a
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`manufacturer’s duty extends not only to those who use its products “but also to third persons whom
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`the supplier should expect to be endangered by [their] use,” which may include persons who have
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`no connection with the ownership or use of the product itself. Id. at cmt. d; Ramsey, 189 A.3d at
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`1279.
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`Although the duty to warn imposed by § 388 might at first glance appear very broad, a
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`manufacturer’s ultimate duty is limited in several significant ways. First, the manufacturer’s duty
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`is “dependent on whether it had knowledge of the hazard associated with its product.” Ramsey,
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`189 A.3d at 1279 (citation omitted). Second, “liability is imposed only where the manufacturer
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`had no reason to think that the users of its products would recognize the danger.” Id. Third, the
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`duty only extends to those whom the manufacturer “should expect . . . to be endangered” by the
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`product’s probable use, and the standard for determining the duty is only that which a reasonable
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`person engaged in the manufacturer’s activity would have done, taking into consideration the
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`pertinent circumstances at the time. Id. Finally, Delaware common law recognizes a
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`“sophisticated purchaser” defense that says that a manufacturer may satisfy its duty to warn under
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`certain circumstances by relying on warnings and instructions it conveyed to a downstream
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`purchaser—even where it might have been reasonable to warn a broader class of individuals. Id.
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`Applying those principles, the Delaware Supreme Court recently held in Ramsey that an
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`industrial plant employee’s wife who alleged that her lung cancer was caused by regularly
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`laundering her husband’s asbestos-covered work clothes had a viable negligence claim against an
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`asbestos manufacturer for failure to give warnings and safe laundering instructions. The court held
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`that the asbestos manufacturer was subject to liability to the wife even though she herself did not
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`use the asbestos-containing products and had no connection to either the industrial plant or the
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`asbestos manufacturer. The court pointed out, however, that the asbestos manufacturer could raise
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`a sophisticated purchaser defense, under which it could not be held liable if it provided sufficient
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`warnings and instructions to the husband’s employer, who in turn could have warned the husband
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`or his wife. Id. at 1280.
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`Applying Restatement § 388 to the allegations here, I conclude that the FAC sets forth facts
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`plausibly suggesting that the Manufacturer and Supplier Defendants are subject to liability to
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`Plaintiffs for their alleged failure to warn about known dangers of PFOA and PFOS and to provide
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`instructions for appropriate containment. The FAC alleges facts making it plausible that the
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`Manufacturer Defendants supplied PFOA and PFOS to the Supplier Defendants (and others), who
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`incorporated those chemicals into products used for plating. The FAC alleges facts making it
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`plausible that the Manufacturer and Supplier Defendants knew both that the PFC-containing
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`products they supplied would be used by a downstream purchaser for plating and that the use for
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`which they were supplied would generate PFC-containing waste that would need to be disposed
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`of. It alleges facts suggesting that the Manufacturer and Supplier Defendants knew that, if not
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`handled appropriately, PFC-containing waste could contaminate the local water supply and
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`endanger the health of those who drank from it. It alleges facts suggesting that the ultimate users
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`(Procino and Peninsula) did not dispose of their PFC-containing waste in a way that kept it out of
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`the water supply, resulting in high concentrations of PFCs in Blades’ water supply, which makes
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`it at least plausible that the Manufacturer or Supplier Defendants—or both—did not provide
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`appropriate warnings and instructions to downstream users. Those allegations are enough to move
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`forward with a negligent failure to warn claim against the Manufacturer and Supplier Defendants.
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`The Manufacturer and Supplier Defendants argue that the Ramsey case is limited to its
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`particular facts and that recognizing a duty under the facts alleged here would be expanding
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`Delaware law. I disagree. In Ramsey, the Delaware Supreme Court referred to Restatement § 388
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`as setting forth “settled principles.” Ramsey, 189 A.3d at 1284. Nothing in the Ramsey opinion
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`suggests that the Delaware Supreme Court would apply § 388 only to take-home asbestos cases.5
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`Applying the Restatement here is not expanding the law; it is applying settled Delaware law to a
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`new set of facts.6
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` 3M cites Brower v. Metal Industries, Inc. for the proposition that it owes no duty to
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`Plaintiffs because Peninsula and Procino disposed of PFOA and PFOS in a way that was obviously
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`improper. 719 A.2d 941, 945–46 (Del. 1998) (holding that a window screen manufacturer “had
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`no duty to persons who could be harmed by a screen improperly used for the unintended purpose
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`of restraining infant children from falling out of an open window”). 3M points out that the FAC
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`5 In support of their assertion that Ramsey has no application outside of the take-home
`asbestos context, Defendants seize on this line from the Delaware Supreme Court’s opinion: “We
`therefore overrule our prior cases, to the extent necessary, . . . and hold that a household member
`who regularly launders an employee’s asbestos-covered clothing, like the plaintiff-spouse here,
`may sue her spouse’s employer for its failure to provide warnings and safe laundering
`instructions.” Ramsey, 189 A.2d at 1262. Defendants take the “to the extent necessary” clause
`out of context to suggest that the Delaware Supreme Court will apply Restatement § 388 to a case
`only “to the extent” it is a take-home asbestos case. I disagree. That is not what the Court said,
`and nowhere in that opinion did the Court say or imply that it would only apply Restatement § 388
`to take-home asbestos cases. The cases that were overruled “to the extent necessary” by Ramsey
`were cases that had held that employers were not liable for their failure to warn employees’ spouses
`about asbestos; the Court overruled them because it considered it unfair to hold manufacturers and
`suppliers liable under § 388 but to immunize their purchasers.
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`6 Of course, Plaintiffs’ negligence claim is governed by Delaware law, and it is not the
`place of a federal court to decide whether a state court should follow “emerging law.” Bruffett v.
`Warner Commc’ns, Inc., 692 F.2d 910, 920 (3d Cir. 1982). I note, however, that courts in other
`jurisdictions (applying different legal standards) have concluded that PFC manufacturers
`(including 3M and DuPont) and suppliers may be liable to individuals exposed to PFCs in the
`water supply. See, e.g., Menkes v. 3M Company, No. 17-0573, 2018 WL 2298620, at *3–5 (E.D.
`Penn. May 21, 2018) (applying Pennsylvania negligence law); Andrick v. Saint-Gobain
`Performance Plastics Corp., No. 17-1058, 2018 WL 3068056 (N.D.N.Y. June 21, 2018) (applying
`New York strict products liability law); Wickenden v. Saint-Gobain Performance Plastics Corp.,
`2018 WL 3069193, at *7 (N.D.N.Y. Jun. 21, 2018) (same).
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`alleges that Peninsula and Procino “carelessly discharged PFOA and PFOS into the environment.”
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`(D.I. 114 at 6 (citing FAC ¶ 2).) But a “careless discharge” is not necessarily the same thing as an
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`“obvious misuse.” Even if it were obvious in 2022 that PFOA- and PFOS-containing waste should
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`not be directly discharged into the environment, the Court cannot at this stage and on this record
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`make a finding about whether the same conduct was obviously improper decades ago. One
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`inference that might be drawn from the facts alleged is that the electroplating companies
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`discharged their waste the way they did because the Manufacturer and Supplier Defendants did
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`not provide appropriate warnings about the dangers of releasing PFOA and PFOS into the
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`environment. Moreover, it is possible—and, indeed, the FAC alleges—that PFOA and PFOS were
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`discharged into the environment both during their intended use in the plating process as well as
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`when the waste was disposed of. (FAC ¶¶ 8, 96.) 3M is essentially saying that the electroplating
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`companies’ improper dumping must have been the only cause of the contamination in Blades. But
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`the Court must view the allegations in the light most favorable to Plaintiffs, and the Court cannot
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`(at this stage and on this record) conclude that the contamination arose solely as a result of
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`obviously improper conduct on the part of the electroplating companies.
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`The Manufacturer and Supplier Defendants contend that the negligence claim should be
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`dismissed at this stage because imposing a duty under these circumstances would require them to
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`provide warnings to persons they do not even know. I’m not persuaded that Defendants are entitled
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`to dismissal on that basis. Delaware follows Restatement § 388, and it says that manufacturers
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`and suppliers of chattel can be liable to persons they have no connection with. In addition, the
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`Manufacturer and Supplier Defendants may be entitled to invoke some form of the “sophisticated
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`purchaser” defense, under which they could attempt to establish that their duties to warn were
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`discharged because they conveyed warnings and handling instructions to a downstream
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`purchaser.7 See Ramsey, 189 A.3d at 1281 n.131.
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`2.
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`Causation
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`Each of the Manufacturer and Supplier Defendants contends that the FAC fails to plausibly
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`allege that one of its products contributed to the PFC pollution in Blades’ water supplies. I
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`disagree. As for the Supplier Defendants, the FAC alleges, for example, that Atotech
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`manufactured PFC-containing Fumetrol-140, that MacDermid sold PFC-containing Barrett Snap,
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`both of which were used by Peninsula, which operated in Blades from 1993 to 1995. As for the
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`Manufacturer Defendants, although the FAC’s allegations are not the most detailed, Plaintiffs
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`allege enough for each Defendant to understand what they are accused of doing—selling PFC-
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`7 Although Ramsey only dealt with the case of an employer who could have warned
`employees and their spouses, it cited an influential law review article that applied the same
`reasoning to also argue that the sellers of industrial supplies and equipment should only have a
`duty to warn the purchasers who bought directly from them. Ramsey, 189 A.3d at 1281 n.131
`(citing Victor E. Schwartz & Russell W. Driver, Warnings in the Workplace: The Need for a
`Synthesis of Law and Communication Theory, 52 U. Cin. L. Rev. 38 (1983)). Some of the
`Defendants suggest that they did provide adequate warnings to downstream purchasers. But what
`Defendants said to whom and when is a factual matter inappropriate for resolution at the motion
`to dismiss stage. Given that there are high levels of PFCs in the water supplies in Blades, it is at
`least plausible that they didn’t.
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`In a related argument, MacDermid contends that it cannot be liable under Restatement
`§ 388 because “Plaintiffs plead that Procino (and presumably Peninsula) ‘knew or should have
`known’ that ‘exposure to PFC-Containing Products was hazardous to the environment and human
`health.’ FAC ¶¶ 196–197, 200 (emphasis added).” (D.I. 111 at 10.) In other words, MacDermid
`contends that it had no duty to warn downstream purchasers like Procino and Peninsula because
`one of those purchasers (Procino) already knew that PFOA and PFOS are dangerous if handled
`improperly. I reject that argument. It is true that a supplier does not have a duty to warn under
`§ 388 if it provides a product to a purchaser “whom the supplier knows or reasonably believes is
`aware of th[e] danger.” Ramsey, 189 A.3d at 1274 (quoting In re Asbestos Litig. (Mergenthaler),
`542 A.2d 1205, 1212 (Del. Super. Ct. 1986)). But Plaintiffs here do not allege that MacDermid
`knew or reasonably believed that Procino knew about the dangers of PFOA and PFOS. And while
`it is possible that a jury will find that negligence on the part of Procino was the only proximate
`cause of Plaintiffs’ injuries, the court cannot make that determination at this stage.
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`containing products without sufficient warnings and instructions that ultimately ended up at
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`Procino and Peninsula—and to mount a defense.
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`The Manufacturer and Supplier Defendants cite asbestos cases for the proposition that toxic
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`tort plaintiffs are required to be more specific about the products at issue and the time frame of
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`exposure. See, e.g., Baldonado v. Arvinmeritor, Inc., No. 13-833-SLR-CJB, 2014 WL 2116112,
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`at *4–6 (D. Del. May 20, 2014), adopted, 2014 WL 2621119 (June 10, 2014); In re Benzene Litig.,
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`No. 05C-09-020-JRS (BEN), 2007 WL 625054, at *1, *7 (Del. Super. Ct. Feb. 26, 2007). As In
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`re Benzene Litigation recognized, requiring a plaintiff to identify a product or premises at issue
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`and the time and place of the exposure serves several important purposes, including helping a
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`defendant figure out if the defendant sold an implicated product and in what form the plaintiff
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`encountered it. In re Benzene Litig., 2007 WL 625054, at *7. While an asbestos plaintiff may not
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`always remember the precise circumstances surrounding his potential exposure, he has some
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`reason to believe that he was exposed to asbestos, and requiring him to plead that information “will
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`begin to draw a picture from which the defendants can ascertain which of their products are
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`involved in the litigation.” Id. at *8. However, those cases also recognize that a defendant’s
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`interest in specific factual allegations must be balanced against the difficulties facing a plaintiff
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`who may not remember where and when his exposure to asbestos occurred.8 Id. at *3.
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`8 To the extent that Defendants rely on asbestos cases from the Delaware Superior Court,
`I note that, unlike the Federal Rules of Civil Procedure, Superior Court Rule 9(b) requires
`negligence claims to be pleaded with particularity. While this Report and Recommendation
`acknowledges cases like In re Benzene Litigation and the policy reasons for requiring certain
`allegations in toxic tort cases, none of the Moving Defendants have suggested that the Superior
`Court rules govern this Court’s review of the adequacy of the allegations in the FAC. See
`Baldonado v. Arvinmeritor, Inc., 2014 WL 2116112, at *3 (“Once a case is removed to the United
`States district courts, . . . the Federal Rules of Civil Procedure govern the pleading requirements
`for a plaintiff’s complaint.”).
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`Plaintiffs here, unlike most asbestos plaintiffs, were not directly exposed to dangerous
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`products at their place of employment. Rather, Plaintiffs allege that they were exposed to elevated
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`levels of PFCs in their drinking water. The Manufacturer and Supplier Defendants do not explain
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`how, at this stage of the case, Plaintiffs could narrow down the time frame of their exposure to
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`elevated PFCs, which allegedly occurred over a period of years, or even how narrowing the time
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`frame of their exposure would be helpful to Defendants in understanding what they are accused of
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`doing (as Defendants may have engaged in the accused conduct decades before the exposure). Nor
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`is it apparent how Plaintiffs could figure out more details about the PFC-containing products at
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`issue without the benefit of discovery.
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`Plaintiffs have identified products and classes of products (PFC-containing mist and fume
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`suppressants, fluorosurfactants, wetting agents and emulsifiers,
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`including Fumetrol-140
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`manufactured by Atotech, Barrett Snap manufactured by MacDermid, and cadmium fluoroborate),
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`how they were used (e.g., in plating processes), the companies that used them (Procino and
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`Peninsula), where thos