UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Kevin Brown, et al.

v. Civil No. 16-cv-242-JL Opinion No.

Saint-Gobain Performance Plastics Corp., et al.

MEMORANDUM ORDER

Resolution of the defendants’ motions to dismiss this

environmental trespass action turns on whether the plaintiffs

have pleaded injuries recognized by New Hampshire law.

Plaintiffs in this consolidated, putative class action allege

that defendant Saint-Gobain Performance Plastics Corporation’s

Merrimack, New Hampshire plant released chemicals that

contaminated the local groundwater.1 They seek to recover

against Saint-Gobain and the facility’s general manager, Gwenael

Busnel, for damages to plaintiffs’ property, including

1 The plaintiffs filed a series of actions against Saint-Gobain and the plant’s general manager arising from the chemical contamination. Specifically, one set of plaintiffs filed two proposed class actions in Hillsborough Superior Court against Saint-Gobain and Gwenael Busnel, which defendants removed to this court. A second set of plaintiffs filed a proposed class action in this court against Saint-Gobain alone. A third set of plaintiffs filed an individual action against Saint-Gobain in this court. The court consolidated these cases for all purposes, see Order of Consolidation (doc. no. 48), and appointed interim lead class counsel, see Order of May 11, 2017 (doc. no. 76). diminished property value, and accrual of costs associated with

monitoring for potential injuries caused by ingesting the

chemicals at issue.

The court has subject-matter jurisdiction over this action

under the Class Action Fairness Act.

(d)(2)(A).

The defendants move to dismiss the complaint in its entirety.

They contend that the plaintiffs have not pleaded any present,

physical injury to their property or their persons, and that the

economic loss doctrine precludes their recovery in tort for

purely economic damages. They further argue that plaintiffs

have failed to plead intentional trespass and that New Hampshire

law does not recognize their claims for negligent failure to

warn and unjust enrichment.

The court denies the majority of the defendants’ motion.

At this stage of the litigation, the property-owning plaintiffs

have pleaded facts, including present, physical damage to their

property and contamination of groundwater, sufficient to

maintain their claims for trespass, nuisance, and negligence.

The defendants’ motion to dismiss the medical-monitoring

plaintiffs’ claims is likewise denied at this juncture. Because

New Hampshire has not recognized negative unjust enrichment --

that is, unjust enrichment through a defendant’s failure to

incur costs rather than through receipt of a benefit -- as a

2 cause of action, however, the court dismisses the plaintiffs’

unjust enrichment claim.

Applicable legal standard

A plaintiff’s complaint must include “factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Martinez v.

Petrenko,

(1st Cir. 2015) (quoting Ashcroft v.

Iqbal,

(2009)). This standard “demands that a

party do more than suggest in conclusory terms the existence of

questions of fact about the elements of a claim.” A.G. ex rel.

Maddox v. Elsevier, Inc.,

(1st Cir. 2013). In

ruling on such a motion, the court accepts as true all well-

pleaded facts set forth in the complaint and draws all

reasonable inferences in the plaintiff’s favor. See, e.g.,

Martino v. Forward Air, Inc.,

(1st Cir. 2010).

With the facts construed in this manner, “questions of law [are]

ripe for resolution at the pleadings stage.” Simmons v. Galvin,

(1st Cir. 2009).

Background

This proposed class action arises out of the release of

toxic chemicals from Saint-Gobain’s manufacturing plant in

Merrimack, New Hampshire. Saint-Gobain has owned and operated a

3 plant in Merrimack since 2000.2 Defendant Busnel has served as

general manager of the plant since 2012.3 At that location,

Saint-Gobain used ammonium perflurooctonoate (AFPO), a

derivative of perfluorooctanoic acid (PFOA)4 in, for example, a

process that coated woven fiberglass and other fabric with

material.5

In early 2016, Saint-Gobain reported the presence of

elevated levels of PFOA in the municipal water supplied by the

Merrimack Village District Water Works.6 Following this report,

the New Hampshire Department of Environmental Services

discovered the presence of PFOA in residential wells in the

vicinity of Saint-Gobain’s plant and recommended that certain

residents of surrounding cities and towns not drink or cook with

2 Plaintiffs allege that the plant was previously operated by ChemFab Corporation, which Saint-Gobain acquired in 2000. Compl. (doc. no. 80) ¶ 12. 3 Id. ¶ 9. 4 PFOA and AFPO are members of a family of per- and polyfluoroalkyl substances (PFAS). In their complaint, the plaintiffs use the terms PFAS and PFOA interchangeably to refer to both chemicals collectively. See id. ¶ 13. The court refers to them collectively as PFOA, except where quoting the plaintiffs’ complaint. 5 Id. ¶¶ 13-14. 6 Id. ¶ 37.

4 water from those wells, or consume vegetables from gardens where

PFOA-contaminated water was used.7

The plaintiffs allege that Saint-Gobain released PFOA into

the air, soil, and water in the vicinity of its Merrimack

facility.8 Because PFOA is water-soluble, it “can migrate

readily from soil to groundwater” and, because it is

biologically and chemically stable, it can “remain present in

the environment long after [it is] released.”9 The United States

Environmental Protection Agency associates exposure to PFOA with

increased risk for certain types of cancer, as well as other

illnesses and conditions.10

Plaintiffs further allege that Saint-Gobain was aware of

the potential for PFOA contamination arising from its

manufacturing processes in light of contamination of the public

drinking water supply near its Hoosick, New York plant, which it

reported to the United States Environmental Protection Agency in

2014.11 Plaintiffs also allege that Saint-Gobain removed its

operations from a plant in North Bennington, Vermont, to the

7 Id. ¶¶ 42-44. 8 Id. ¶¶ 13-15. 9 Id. ¶ 13. 10 Id. ¶ 46-47. 11 Id. ¶¶ 17-20.

5 Merrimack facility after Vermont imposed tighter environmental

protection regulations to reduce emissions of PFOA.12 Despite

this knowledge, plaintiffs allege, Saint-Gobain failed to

install systems to limit PFOA emissions from its Merrimack

facility.13

The plaintiffs allege that PFOA has contaminated the soil

and water obtained through private wells within a certain

geographic area,14 as well as water in Merrimack and Bedford, New

Hampshire, provided through the Merrimack Village District Water

Works.15 For all of those who own residential property within

these geographic areas, the plaintiffs seek damages for injury

to their property, including (1) diminished market value,

12 Id. ¶¶ 21-26. 13 Id. ¶¶ 27-29. 14For purposes of defining the property-owner classes, the plaintiffs define this area as comprising:

In Bedford and Merrimack, the geographic area west of the Merrimack River within three (3.0) miles of the property boundary of the Saint-Gobain Site; in Litchfield, the geographic area bounded by the Merrimack River on the west, Cummings Drive on the South, extended east to the Merrimack River and west to the Londonderry Town line, and the Londonderry Town Line on the East and the City of Manchester on the North and East, and the geographic area in Manchester bounded by Raymond Wieczorek Drive on the North.

Id. ¶ 60. 15 Id. ¶¶ 37, 43.

6 (2) costs incurred to remediate and mitigate the contamination,

and (3) loss of use and enjoyment of their property.16

For all of those who resided in these geographical areas

and consumed water containing defined levels of PFOA for at

least one year, or were born to mothers who consumed such water,

the plaintiffs seek to recover the costs of monitoring for

injuries related to exposure to PFOA in light of their

“significant increased risk of illness, disease or disease

process . . . .”17 The DeBlois plaintiffs, who have opted out of

these classes, seek the same remedies, as well as recovery for

“additional losses including, but not limited to, business

losses, attorney fees for protecting their property rights in

placing the water line, future water expenses and out-of-pocket

expenses.”18

Analysis

Plaintiffs bring claims under four common-law torts:

trespass, nuisance, negligence, and negligent failure to warn.

They also seek to recover under the equitable doctrine of unjust

enrichment. The defendants move to dismiss plaintiffs’

negligence, nuisance, and trespass claims, arguing that the

16 Id. ¶ 54. 17 Id. ¶ 55. 18 Id. ¶ 56.

7 plaintiffs claiming property damage have not alleged any

tangible damage to their property, but seek only economic

damages foreclosed in tort by the economic loss doctrine or to

recover for groundwater contamination, for which they have no

private cause of action. Defendants further argue that the

plaintiffs seeking medical monitoring have not alleged any

present physical injury. Finally, they argue that the

plaintiffs have failed to plead all the elements of trespass,

and that plaintiffs, even on the facts construed in their favor,

cannot recover under their negligent failure to warn and unjust

enrichment theories.

A. Injury to property

Two sub-classes of plaintiffs claim injuries resulting from

chemical contamination of their real property: those in the

appropriate geographical areas who own property served by

private wells and those in the relevant towns who own property

served by the Merrimack Village District Water Works.19 The

defendants move to dismiss the negligence, trespass, and

nuisance claims of these property-owning plaintiffs for failure

to allege present and actual damages to their property.

The allegations in the complaint are, as the defendants

observe, fairly general. These property-owning plaintiffs

19 Id. ¶¶ 58, 60-61.

8 allege that Saint-Gobain, through releasing toxic PFOA into

nearby environs, contaminated the soil, dust, household water

and household water systems, groundwater wells, air, and trees

on the plaintiffs’ property.20 They also allege that the PFOA

contamination “further migrated through the soil and into the

groundwater that Plaintiffs and Class Members have the right to

use and have used for their domestic water supply.”21

As a result of this contamination, they allege, the

property-owning plaintiffs have “suffered the cost of mitigating

the contamination through filters and alternative water

supplies, and the cost of restoring and maintaining the water”

and have had to pay to remediate their properties.22 They

further claim that the value and marketability of their property

has diminished as a result of the contamination.23 Finally, they

claim loss of use and enjoyment of their properties, and that

they “have also suffered annoyance, discomfort, and

inconvenience” due to the “contamination of their properties and

water supplies . . . .”24

20 Id. ¶¶ 15, 39, 48. 21 Id. ¶ 39, 48. 22 Id. ¶ 54. 23 Id. 24 Id.

9 Through these allegations, the property-owning plaintiffs

have pleaded, at the very least, a compensable injury sufficient

to state claims for trespass and nuisance by pleading the

presence of PFOAs in the groundwater serving both private and

municipal water sources. “[C]ontamination of water with

chemicals having a potential to cause harm is itself an injury

regardless of whether the chemicals are certain to cause the

ultimate harm of which they are capable.” Energynorth Nat. Gas,

Inc. v. Cont’l Ins. Co.,

(2001).

Having established that contamination of water as alleged

here may amount to an injury, the question then becomes whether

it amounts to an injury to the plaintiffs. In New Hampshire, as

Saint-Gobain observes, “instead of absolute ownership of the

groundwater beneath one’s land, ‘the right of each is only to a

reasonable use or management.’” In re Town of Nottingham,

(2006) (quoting Bassett v. Salisbury Mfg. Company,

(1862)). Absent such absolute ownership rights

in groundwater, diminution of groundwater under a landholder’s

property by the State does not amount to a taking. Nottingham,

. Similarly, “in this state lakes, large natural

ponds, and navigable rivers are owned by the people, and held in

trust by the state in its sovereign capacity for their use and

benefit,” giving rise to a public, not a private, right to use

and benefit from them. St. Regis Paper Co. v. N.H. Water Res.

10 Bd.,

(1942) (comparing such rights to

traditional riparian rights, “which are property rights and

which may not be invaded or taken from the owner without

compensation.”). The public nature of this right prevented the

plaintiff in St. Regis from successfully challenging the State’s

delegation of authority over such waters to the State Water

Resources Board.

.

Relying on Nottingham and St. Regis, Saint-Gobain argues

that the property-holding plaintiffs cannot recover for alleged

contamination of the groundwater under their properties.25 Those

plaintiffs are not, however, seeking compensation for a

governmental taking, nor do they challenge the State’s

regulation of navigable waterways. Instead, they have pleaded

an interference with their use of the groundwater under their

property in light of alleged chemical contamination. The New

Hampshire Supreme Court has suggested that at least “claims for

diminution in value of private property, lost business

expenditures and other business and economic losses resulting

from [chemical] contamination properly belong to private

parties,” rather than the State as trustee of those waters.

State v. Hess Corp.,

(2011), as modified on

denial of reconsideration (Mar. 22, 2011). Thus, under Hess,

25 See Defendants’ Mem. (doc. no. 82-1) at 9-10.

11 the property-owning plaintiffs have an interest sufficient to

state claims at least for economic losses arising from the

presence of contaminated groundwater by alleging diminished

property values.26 Insofar as damages in trespass and nuisance

actions “are measured primarily by the difference between the

value of the real estate before and after the defendant’s wrong

was committed,” Delay Mfg. Co. v. Carey,

(1940),

the plaintiffs have alleged damage sufficient to state a claim

under those theories.27 See also Soucy v. Royal,

,

26The Court further concluded that the State, acting as parens patriae, is “not necessarily preclude[d] . . . from pursuing damages for the costs of investigating, monitoring, treating, remediating, replacing, or otherwise restoring [privately-owned] wells” when “the injury alleged affects the general population of a State in a substantial way.”

It did not, however, affirmatively hold that the individual property owners may not recover such damages. Cf. id. at 440 (leaving open the possibility that “any monetary damages claimed by citizens individually may be excluded from the State’s recovery” should private-well owners “actually object to state testing and treatment of their wells.”). 27The defendants also argue that the groundwater contamination alleged here would amount to a public, rather than a private, nuisance or trespass, precluding property-owning plaintiffs from a claim under those theories. See Defendants’ Mem. (doc. no. 82-1) at 12-14. A private nuisance “may be defined as an activity which results in an unreasonable interference with the use and enjoyment of another’s property. A public nuisance, on the other hand, is an unreasonable interference with a right common to the general public.” Robie v. Lillis,

(1972) (internal citations and quotations omitted). Where “[c]onduct which unreasonably interferes with the rights of others may be both a public and a private nuisance,”

and the determining factor is the substantiality of the

12 172 (1976) (damages in trespass and nuisance “determined by the

difference between the value of the property with and without

the trespass and nuisance”).

It is less clear that the property-owning plaintiffs have

alleged physical damage to their real property sufficient to

recover on a claim for negligence. “To recover for negligence,

a plaintiff must show that the defendant owes a duty to the

plaintiff and that the defendant’s breach of that duty caused

the plaintiff’s injuries.” Christen v. Fiesta Shows, Inc., No.

2016-0528,

, at *2 (N.H. Oct. 4, 2017). Saint-

Gobain contends that the plaintiffs’ general allegations of

damage do not suffice as allegations of present, physical injury

to their property sufficient to state a claim for negligence,28

and that the economic loss doctrine precludes them from

recovering in negligence for the economic losses discussed

supra.29

interference, the court is not inclined to dismiss these claims on this record.

To the extent that the cases from other jurisdictions on which the defendants rely for the proposition that interference with groundwater cannot give rise to a private nuisance or trespass claim, they conflict with Hess,

, and do not mandate dismissal. 28 Defendants’ Mem. (doc. no. 82-1) at 10-12. 29 Id. at 7-8, 10.

13 “In New Hampshire, the general rule is that ‘persons must

refrain from causing personal injury and property damage to

third parties, but no corresponding tort duty exists with

respect to economic loss.’” Plourde Sand & Gravel Co. v. JGI

E., Inc.,

(2007) (quoting Ellis v. Robert C.

Morris, Inc.,

(1986)). Thus, “a plaintiff may

not ordinarily recover in a negligence claim for purely

‘economic loss’.” Border Brook Terrace Condo. Ass'n v.

Gladstone,

(1993).

As the plaintiffs observe, the economic loss doctrine most

commonly precludes contracting parties from recovering in tort

for purely economic losses associated with that contractual

relationship. See Plourde,

(“[W]here a

plaintiff may recover economic loss under a contract, generally

a cause of action in tort for purely economic loss will not

lie.”). The parties dispute whether New Hampshire extends the

economic loss doctrine to prohibit recovery in tort for any

economic loss, even one suffered outside of a contractual

relationship. The New Hampshire Supreme Court has suggested as

much, see

, and the First Circuit Court of Appeals

has concluded that New Hampshire adopted the economic loss

doctrine in “its broadest form,” under which “the doctrine

reaches beyond the contractual context . . . .” Schaefer v.

Indymac Mortg. Servs.,

, 103–04 (1st Cir. 2013).

14 But, as the plaintiffs observe, the existence of a contractual

relationship governed the outcome of both of those cases. See

Plourde,

(economic loss doctrine barred tort

recovery where plaintiff’s economic loss arose “solely from

disappointed commercial expectations in that the plaintiff lost

the anticipated profits of its contract with” a third party

(quotations omitted)); Schaefer,

(plaintiff’s

negligence claims arising out of foreclosure proceedings barred

by economic loss doctrine where alleged duties to provide

information to plaintiff arise from mortgage agreement). It is

unclear, therefore, whether the economic loss doctrine in New

Hampshire would bar recovery of economic losses in a situation

such as this, where the alleged losses arise from negligence

outside of the context of a contractual or otherwise purely

economic relationship.

The court need not definitively resolve this question at

this stage in the proceedings. The property-owning plaintiffs

have pleaded not only economic damages, but also that they have

suffered damage to their property through the presence of PFOA

in the soil and water, requiring them to mitigate the

contamination and remediate their properties. They further

allege that the contamination has led to lost use and enjoyment

of those properties. Though the complaint is not a model of

precision and clarity, and these allegations are less than

15 robust,30 the court is disinclined, at this stage in the

litigation, to dismiss the plaintiffs’ negligence claim where

they have sufficiently pleaded damages to their property to

maintain claims for the common-law torts of trespass and

nuisance on effectively the same factual bases.

B. Medical monitoring damages

Two additional sub-classes of plaintiffs seek damages in

the form of costs to cover monitoring for potential medical

conditions arising from their exposure to PFOA through its

presence in the air and soil and through consumption of

contaminated water.31 Exposure to PFOA in this manner, the

plaintiffs allege, creates a “significant increased risk of

illness, disease or disease process . . . requiring an award of

the cost of a program for medical monitoring for detection of

30As an example, as the defendants observed during oral argument, the property-owning plaintiffs have not clearly alleged direct damage to any property. Instead, they have alleged that their property is contaminated by PFOA as a result of the defendants’ actions and that they have “suffered the need for and the cost of remediation of their properties.” Compl. (doc. no. 80) ¶ 54. At oral argument, plaintiff’s counsel confirmed that their allegations of a need for mitigation and remediation, rendered necessary by the contamination, constitute the plaintiffs’ allegations of injury to their property beyond mere invasion by PFOA. The court, drawing all reasonable inferences in the plaintiffs’ favor, see Martino,

, construes these as allegations that the plaintiffs’ property has been damaged in some manner that gives rise to some necessarily remedial actions. 31 Compl. (doc. no. 80) ¶¶ 55, 59, 62.

16 such illness, disease process or disease.”32 Saint-Gobain moves

to dismiss the medical-monitoring plaintiffs’ claims,33 arguing

that the lack of any present physical injury to the plaintiffs -

- as compared to speculative, future injury -- precludes their

recovery in tort.

Some states allow recovery for the costs of such medical

monitoring. The plaintiffs rely heavily, for example, on the

Supreme Court of Appeals of West Virginia’s decision that, even

absent present, physical injury, “a cause of action exists under

West Virginia law for the recovery of medical monitoring costs,

where it can be proven that such expenses are necessary and

reasonably certain to be incurred as a proximate result of a

defendant’s tortious conduct.” Bower v. Westinghouse Elec.

Corp.,

(W.Va. 1999). To sustain such a

claim,

the plaintiff must prove that (1) he or she has, relative to the general population, been significantly

32 Id. ¶ 55. 33The plaintiffs pleading all claims on behalf of “Plaintiffs and Class Members” generally, without distinguishing among or between property-owning plaintiffs and plaintiffs seeking to recover for medical monitoring costs. At oral argument, plaintiffs’ counsel clarified that the plaintiffs assert all claims on behalf of all plaintiffs. It is unclear to the court whether plaintiffs who are not property-owners may recover for injuries to their persons under theories of trespass and nuisance. As the defendants have not moved on those grounds, and as the parties have not briefed the issue, the court need not resolve it here.

17 exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.

Id. at 432-33. Other states have likewise recognized a right to

similar recovery against exposure to toxic chemicals. See,

e.g., Exxon Mobil Corp. v. Albright,

, (Md. 2013)

(“evidence of physical injury is not required to support costs

for medical surveillance”); Meyer ex rel. Coplin v. Fluor Corp.,

(Mo. 2007) (“recovering medical monitoring

damages does not require a threshold showing of present physical

injury”); Potter v. Firestone Tire & Rubber Co.,

(Cal. 1993) (“a reasonably certain need for medical

monitoring is an item of damage for which compensation should be

allowed”); Ayers v. Jackson Twp.,

(N.J. 1987)

(recognizing “the cost of medical surveillance [as] a

compensable item of damages” in toxic tort litigation). See

also Baker v. Saint-Gobain Performance Plastics Corp.,

(N.D.N.Y. 2017) (denying motion to dismiss

tort claims against Saint-Gobain seeking medical-monitoring

costs as damages); Benoit v. Saint-Gobain Performance Plastics

Corp., No. 116-CV-1057,

, at *9-10 (N.D.N.Y. Aug.

18 2, 2017) (same). In doing so, several courts have relied, at

least in part, on the conclusion of the Court of Appeals for the

District of Columbia that a plaintiff “ought to be able to

recover the cost for the various diagnostic examinations

proximately caused by [the defendant’s] negligent action.”

Friends for All Children, Inc. v. Lockheed Aircraft Corp.,

(D.C. Cir. 1984) (addressing claims for

compensation for medical evaluations of passengers following an

airplane crash).

Still other states have rejected an expansion of negligence

doctrine to encompass potential, not present, physical injury.

See, e.g., Henry v. Dow Chem. Co.,

(Mich.

2005) (economic losses incurred by paying for medical monitoring

“are wholly derivative of a possible, future injury rather than

an actual, present injury. A financial ‘injury’ is simply not a

present physical injury, and thus not cognizable under our tort

system.” (emphasis original)); Lowe v. Philip Morris USA, Inc.,

(Or. 2008) (“the present economic harm that

defendants’ actions allegedly have caused -- the cost of medical

monitoring -- is not sufficient to give rise to a negligence

claim”); see also Metro-N. Commuter R. Co. v. Buckley,

(1997) (declining to recognize a “separate tort claim

for medical monitoring costs” for “asymptomatic plaintiffs”

under the Federal Employers’ Liability Act).

19 Neither New Hampshire’s legislature nor its Supreme Court

has spoken on the question. Generally, in New Hampshire,

[t]he possibility that injury may result from an act or omission is sufficient to give the quality of negligence to the act or omission; but possibility is insufficient to impose any liability or give rise to a cause of action. . . . If, in a sense, there has been negligence, there is no cause of action unless and until there has been an injury.

White v. Schnoebelen,

(1941). In the absence

of such a present, physical injury, the medical-monitoring

plaintiffs in this action seek to recover for an “economic

injury” -- that is, the cost of monitoring to determine whether

they have an injury.34 Such an allegation appears to conflate

“[a]n allegation of ‘injury,’” which is “an instance of

actionable harm,” with “a claim for ‘damages,’” that is, “a sum

of money awarded to one who has suffered an injury.” Smith v.

Cote,

, 241–42 (1986). The two are distinct.

In so doing, the plaintiffs effectively conceded that they do

not, at present have an injury.35 And, as discussed supra, it is

34Opp. (doc. no. 84-1) at 17. Plaintiffs further characterize their “injury” as “the present need for and cost of diagnostic testing.” Id. at 18. At oral argument, plaintiffs’ counsel further clarified that the injury giving rise to the medical- monitoring plaintiffs’ claims constitutes their exposure to PFOA plus the cost of the monitoring. 35The court is not persuaded that the rule allowing a plaintiff to “maintain an action against an insurer for negligent failure to settle a case without prior payment of or proof of ability to pay the excess judgment,” Dumas v. State Farm Mut. Auto. Ins. Co.,

(1971), translates into a viable claim for

20 unclear to the court whether New Hampshire law precludes a

negligence claim seeking to recover purely economic damages in

an action sounding purely in tort. See supra Part III.A

(discussing economic loss doctrine).

The court is therefore considering whether to certify this

question to the New Hampshire Supreme Court, and at what

procedural posture such a certification would be most

advantageous. See Old Republic Ins. Co. v. Stratford Ins. Co.,

(1st Cir. 2015) (the court is “permitted to

certify questions of law to the New Hampshire Supreme Court when

questions of New Hampshire law are determinative of the case,

and there is no controlling precedent from the New Hampshire

Supreme Court.”); N.H. Sup. Ct. R. 34. The defendants’ motion

to dismiss this claim is, accordingly, denied without prejudice.

C. Trespass (Count 1)

The defendants further argue that the plaintiffs’ claim for

trespass must be dismissed because the plaintiffs have not

alleged that Saint-Gobain intentionally invaded their property.36

“[A] trespass [is] an intentional invasion of the property of

another.” Case v. St. Mary’s Bank,

(2013)

damages where the defendant’s alleged breach of a duty may, but has not yet, resulted in actual injury to the plaintiff. See Opp. (doc. no. 84-1) at 19. 36 Defendant’s Mem. (doc. no. 82-1) at 17-18.

21 (quoting Moulton v. Groveton Papers Co.,

(1972))

(alterations in original). “[I]t is well settled in this

jurisdiction that an involuntary or accidental entry upon the

land of another is not a trespass.” Paine v. Hampton Beach Imp.

Co.,

, 363–64 (1953) (internal quotations and

citations omitted). That said, “[t]he intent with which tort

liability is concerned is not necessarily a hostile intent, or a

desire to do any harm. Rather it is an intent to bring about a

result which will invade the interests of another in a way that

the law forbids.” Thompson v. Forest,

(1992)

(quoting W.P. Keeton et al., Prosser and Keeton on the Law of

Torts § 8 (5th ed. 1984)).

If an actor knows that an injury is substantially certain to result from his act and he nevertheless completes the act, he is treated by the law as if he in fact desired to produce the injury. To constitute an intentional tort, the tortfeasor must have known that his conduct was substantially certain to result in injury.

Id. at 219-20 (citing Vittum v. N.H. Ins. Co.,

(1977)).

The plaintiffs here have alleged that Saint-Gobain used

PFOA in its manufacturing processes at its Merrimack facility,

knowing that those processes, as well as the structure of its

plant, “were sources of odors, visible emissions, particular

emissions and releases of toxic pollutants, including PFAS, that

would travel when released and contaminate the properties and

22 water supplies of Plaintiffs and of Class Members,” resulting in

their exposure.37 The plaintiffs further allege that Saint-

Gobain knew that its processes could result in such

contamination because (1) it used similar manufacturing

processes in, among other places, Hoosick Falls, New York, which

resulted in PFOA contamination of drinking water in that

community, and (2) its predecessor, ChemFab, relocated its

processing plant to Merrimack from North Bennington, Vermont,

because Vermont implemented controls to reduce PFOA emissions.38

Despite this knowledge, plaintiffs allege, Saint-Gobain failed

to sufficiently control or abate PFOA emissions from the

Merrimack facility.39

The plaintiffs have thus alleged that Saint-Gobain knew

that its manufacturing processes emitted PFOA and that PFOA

could, as a result, infiltrate groundwater pulled by private

wells and municipal water systems. The court therefore declines

to dismiss the plaintiffs’ claim, as the defendants would have

it do, on the grounds that the plaintiffs have also alleged that

the defendants did so negligently.40

37 Compl. (doc. no. 80) ¶ 14. 38 Id. ¶¶ 18-20, 21-26. 39 Id. ¶¶ 27-30, 33. 40Defendants’ Mem. (doc. no. 82-1) at 17-18; Compl. (doc. no. 80) ¶ 40.

23 D. Negligent failure to warn (Count 4)

In addition to their claims for general negligence, the

plaintiffs claim that the defendants negligently failed to warn

them “of the release of toxic PFAS and the likelihood that

groundwater and household water supplies were contaminated with

PFAS emitted from the Saint-Gobain Site, and that they were

being exposed to toxic PFAS.”41 Saint-Gobain moves to dismiss

this claim, arguing that New Hampshire law did not impose on it

a duty to warn the plaintiffs under these circumstances.

“In general, anyone who does an affirmative act is under a

duty to others to exercise the care of a reasonable [person] to

protect them against an unreasonable risk of harm to them

arising out of the act.” Coan v. New Hampshire Dep't of Envtl.

Servs.,

(2010) (quoting Restatement (Second) of

Torts § 302 comment a at 82 (1965)). On the other hand, “[t]he

duties of one who merely omits to act are more restricted, and

in general are confined to situations where there is a special

relation between the actor and the other which gives rise to the

duty.” Id. The defendants, arguing that the plaintiffs allege

an omission of an action (that is, failure to warn them of the

potential for contamination), contend that no claim for

negligent failure to warn can lie against them where the

41 Compl. (doc. no. 80) ¶¶ 94-96.

24 plaintiffs have pleaded the existence of no special relationship

giving rise to the duty to warn.42 The plaintiffs, arguing that

the defendants have acted affirmatively (that is, by emitting

PFOA), contend that defendants are subject to the duty of a

reasonable person to protect the plaintiffs against the

unreasonable risk of harm arising from that act by warning them

about the presence of PFOA in their household water.43

The defendants are correct, therefore, that an allegation

of omission, standing alone, likely would require a special

relationship between the parties for a failure to warn claim to

lie. The plaintiffs have not alleged such a relationship. But

nor have they alleged an omission in a vacuum -- they plead it

in the context of an affirmative action by Saint-Gobain. The

plaintiffs have alleged that the Saint-Gobain committed an

affirmative act by releasing the PFOA, and only then that it

omitted to act by failing to warn the plaintiffs about potential

contamination resulting from those emissions. The court is thus

inclined to view plaintiffs’ allegations as invoking the general

“duty to others to exercise the care of a reasonable [person] to

protect them against an unreasonable risk of harm to them

arising out of the act.” Coan,

.

42 Defendants’ Mem. (doc. no. 82-1) at 18-19. 43 Opp. (doc. no. 84-1) at 21-23.

25 At the same time, that duty is the general duty that gives

rise to a claim of negligence.

As such, it is unclear to

the court that the plaintiffs may maintain a negligent failure

to warn claim based on that duty separate from their general

negligence claim. At this stage of the litigation, however,

where the latter may proceed for the reasons discussed supra

Part III.A-B, the court declines to dismiss the former.

E. Unjust enrichment (Count 5)

“Unjust enrichment is an equitable remedy that is available

when an individual receives ‘a benefit which would be

unconscionable for him to retain.’” Axenics, Inc. v. Turner

Const. Co.,

(2013) (quoting Clapp v. Goffstown

Sch. Dist.,

(2009)). “The party seeking

restitution must establish not only unjust enrichment, but that

the person sought to be charged had wrongfully secured a benefit

or passively received one which it would be unconscionable to

retain, and unjust enrichment generally does not form an

independent basis for a cause of action.” Gen. Insulation Co.

v. Eckman Const.,

(2010) (quoting 42 C.J.S.

Implied Contracts § 10, at 17 (2007)). “Unjust enrichment is

not a boundless doctrine, but is, instead, narrower, more

predictable, and more objectively determined than the

26 implications of the words ‘unjust enrichment’.” Clapp,

(quotation omitted).

While it is said that a defendant is liable if ‘equity and good conscience’ requires, this does not mean that a moral duty meets the demands of equity. There must be some specific legal principle or situation which equity has established or recognized, to bring a case within the scope of the doctrine.

Cohen v. Frank Developers, Inc.,

(1978)

(quoting Am. Univ. v. Forbes,

(1936)).

The plaintiffs’ unjust enrichment claim is premised on the

savings that Saint-Gobain incurred -- that is, money not spent -

- rather than on a benefit bestowed -- that is, money or some

good received.44 Such a savings “is also referred to as negative

unjust enrichment or recoverable profit.” Allan Kanner, Unjust

Enrichment in Environmental Litigation,

, 146 (2005). Some jurisdictions have recognized negative

unjust enrichment claims. See Branch v. Mobil Oil Corp.,

(W.D. Okla. 1991) (“Oklahoma recognizes a claim for

negative unjust enrichment.”). Others have recognized a version

of that claim, available only where “the plaintiff is unable to

establish actual damages because such a determination may be too

difficult” but “it would be unjust to allow Defendant to benefit

from disposal of waste on a plaintiff’s property without payment

44 Opp. (doc. no. 84-1) at 23-24.

27 of any kind.” Little Hocking Water Ass’n, Inc. v. E.I. du Pont

Nemours & Co.,

(S.D. Ohio 2015).

Relying on these extra-jurisdictional cases, the plaintiffs

claim that Saint-Gobain has unjustly enriched itself through its

failures to “incur expenditures to limit or prevent the release

of toxic PFAS into the environment and the contamination to

Plaintiffs’ and Class Members’ properties and . . .

neighborhoods and household water supplies” and to incur the

costs to (1) “timely investigate the impacts” of that

contamination; (2) “timely mitigate” those impacts, and

(3) “remediate the contaminated soil, dust and groundwater.”45

By failing to incur these costs, the plaintiffs allege, Saint-

Gobain “has received a benefit and it would be unconscionable

and contrary to equity for [it] to retain that benefit.”46

The plaintiffs have not cited, however, and the court has

not found, any case suggesting that New Hampshire recognizes

claims for negative unjust enrichment. To the contrary, the

plaintiffs offer only one case recognizing an unjust enrichment

claim, and that in the context of a benefit conveyed by the

plaintiff to the defendant when the plaintiff repaired and

improved the defendant’s property. Petrie-Clemons v.

45 Compl. (doc. no. 80) ¶ 98. 46 Id. ¶ 99.

28 Butterfield,

(1982). No other case cited by

the plaintiffs addresses the possibility of such a claim. See

Axenics,

(no unjust enrichment where express

contract governed scope of plaintiff’s work on defendant’s

property); Clapp,

(no unjust enrichment where

defendant retained funds it had otherwise voted to spend because

express contract governed employee's recovery); Univ. Sys. of

N.H. v. Nat’l Gypsum, No. 84-716,

,

at *22 (D.N.H. July 2, 1985) (no unjust enrichment where

plaintiff voluntarily removed asbestos from its buildings);

Cohen,

(no unjust enrichment to defendant when

plaintiff forbore from exercising an option to purchase land to

develop competing shopping center); cf. Camden Nat’l Bank v.

Grestone Select Holdings, LLC,

(no unjust

enrichment in contract context).

Another court in this district has rejected a similar

argument, concluding, under Cohen, that restitution for unjust

enrichment is available only in the context of a contract

(express or implied) or a quasi-contract, and “that profits

gained by defendants as a result of” the defendants’ alleged

statutory violations do not “constitute the unjust receipt and

retention of a ‘benefit’ for which restitution is required.”

Pacamor Bearings, Inc. v. Minebea Co.,

(D.N.H. 1995).

29 Because the plaintiffs’ claim for unjust enrichment is not

based in a “specific legal principle or situation which equity

has established or recognized” in New Hampshire so as “to bring

[this] case within the scope of the doctrine,” Cohen,

, the court grants the defendants’ motion to dismiss

Count 5 of the consolidated complaint.

F. Respondeat superior (Count 6)

Finally, the defendants move to dismiss the plaintiffs’

residual claim against Saint-Gobain based in respondeat

superior.47 Because the court dismisses the plaintiffs’ claim

for unjust enrichment against both defendants, no claim for

respondeat superior liability may lie as against Saint-Gobain on

that basis. The court otherwise denies the defendants’ motion

to dismiss the plaintiffs’ claims based in respondeat superior.

G. Plaintiffs’ motions

As a final note, the plaintiffs’ request on the last page

of their opposition for leave to amend their pleadings48 runs

afoul of this court’s Local Rule 7.1(a)(1) (“Objections to

pending motions and affirmative motions for relief shall not be

combined in one filing.”). Even if it did not, as the

47 Defendants’ Mem. (doc. no. 82-1) at 20. 48 Opp. (doc. no. 84-1) at 24,

30 defendants rightly observe, the court afforded the plaintiffs in

this consolidated action three separate opportunities to file a

consolidated complaint.49 The court assumes that the allegations

and claims asserted in their operative consolidated complaint

are the result of considered factual and legal assessments by

interim class counsel, and is thus disinclined to grant the

plaintiffs a fourth opportunity to adduce facts in support of

their consolidated claims.

The court is equally disinclined to elevate form over

substance, however, and therefore grants the plaintiffs’ motion

for leave to substitute certain paragraph references in their

consolidated complaint to correct what appear to the court to be

mere typographical errors. Plaintiffs shall file an amended

complaint reflecting these revisions on or before December 13,

2017.

49See Consolidation Order (doc. no. 48) (ordering plaintiffs to file consolidated complaint); Brown Plaintiffs’ Master Consolidated Complaint (doc. no. 60) (filed without consultation with Dowling plaintiffs’ counsel); Order of March 6, 2017 (granting extension of time to file consolidated complaint); Dowling Plaintiffs’ Master Consolidated Complaint (doc. no. 70) (filed without consultation with Brown plaintiffs’ counsel); Order of March 30, 2017 (granting motion to stay filing of consolidated complaint until appointment of interim class counsel); Order of May 11, 2017 (appointing interim counsel and ordering consolidated complaint to be filed).

31 Conclusion

For the reasons discussed above, the court GRANTS-IN-PART

and DENIES-IN-PART the defendants’ motion to dismiss the

complaint.50 Specifically, it grants the defendants’ motion to

dismiss the plaintiffs’ unjust enrichment claim (Count 5), and

denies it as to the plaintiffs’ remaining claims.

Finally, the court GRANTS the plaintiffs’ motion for leave

to substitute.51

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: December 6, 2017

cc: Kevin Scott Hannon, Esq. Paul M. DeCarolis, Esq. Anthony Sculimbrene, Esq. Hunter J. Shkolnik, Esq. Kirk C. Simoneau, Esq. Lawrence A. Vogelman, Esq. Louise R. Caro, Esq. Paul J. Napoli, Esq. Finis E. Williams, III, Esq. Bruce W. Felmly, Esq. Douglas E. Fleming, III, Esq. Lincoln D. Wilson, Esq. Mark Cheffo, Esq. Patrick Curran, Esq. Paul A. LaFata, Esq. Sheila L. Birnbaum, Esq. Nicholas F. Casolaro, Esq.

50 Document no. 82. 51 Document no. 88.

32