Most Claims Against Manufacturer Of Chemical Leaked Into West Virginia Water Supply To Proceed

The U.S. District Court for the Southern District of West Virginia determined earlier this month that the bulk of private plaintiffs’ claims against the manufacturer of the chemical that leaked into the Elk River and contaminated the Charleston-area water supply could continue.  The plaintiffs generally contended that the chemical manufacturer failed to warn of the dangers stemming from the chemical release, negligently characterized the risk of the chemical and its potential environmental and health consequences, and negligently sold the alleged hazardous chemical to a suspect facility upstream from a municipal water supply.

The manufacturer argued in a motion to dismiss that the plaintiffs’ tort claims seeking damages for lost profits, business opportunities, and other unnamed expenses should be barred by the economic loss rule, but the court disagreed.  The court explained that the plaintiffs’ damages as plead are not purely economic losses.  For example, the plaintiffs indicate that the chemical caused physical property damage to pipes and other appliances.

The court also allowed the plaintiffs’ claims for negligent infliction of emotional distress to proceed.  Specifically the court found, “In view of the physical injuries alleged, the uncertainty occasioned by the effects of [the chemical], [and] the age of the affected putative class members” allowed the Complaint to survive the motion to dismiss stage: “they have raised a medically established possibility of contracting a disease that will produce substantial disability requiring prolonged treatment to mitigate and manage.”

The court did dismiss the plaintiffs’ private nuisance claim because of the presence of the pollutants in the public water supply and also dismissed the claim seeking to use the Toxic Substances Control Act as a predicate for a prima facie negligence claim.  That act does not allow for private rights of action for money damages.