Benoit v. Saint-Gobain Performance Plastics Corp.

959 F.3d 491

Opinion

17-3941-cv(L)

Benoit v. Saint-Gobain Performance Plastics Corp.

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ------ 4 August Term, 2018 5 (Argued: April 17, 2019 Decided: May 18, 2020)

6 Docket Nos. 17-3941-cv(L), 17-3943(C), 17-3944(C), 7 17-3945(C), 17,-3946(C), 17-3947(C), 17-3948(C), 17-3949(C), 8 17-3950(C), 17-3952(C), 17-3953(C), 17-3954(C), 17-3955(C), 9 17-3956(C), 17-3957(C), 17-3958(C)* 10 _______________________________________________________________

11 THELMA BENOIT, DAVID BENOIT, CYNTHIA BODENSTAB, 12 MARY SCHMIGEL, MICHAEL SCHMIGEL, BYRAN SCHROM, 13 KARY SCHROM, KEVIN SCHROM, NICKOLAS SCHROM, 14 MARGARET SARGOOD, LISA TIFFT, RUTH TIFFT, TRAVIS 15 CONQUEST, BRETT FERRARO, STEVEN CHURCH, SHARON 16 CHURCH, MARTHA CAMPBELL, KENNETH CROSS II and CIELO 17 CROSS, individually and as parent and natural guardian of R.D.C., 18 SUZANNE I. BAKER, ARNOLD BULLINGER, individually and as 19 executor of the estate of EDWARD FROMMER, deceased, JANET 20 VAN DER KAR, DOUGLAS SMITH, BEVERLY WHITE, ROGER 21 WHITE, CHRISTINE JENSEN, JAMES JENSEN, PATRICIA 22 ORMSBEE, DOUGLAS HOLMSTEDT, DEBRA HOLMSTEDT,

* These matters were consolidated for appeal, and for oral argument with the appeals in R.M. Bacon, LLC v. Saint-Gobain Performance Plastics Corp., No. 18-2018, and Baker v. Saint-Gobain Performance Plastics Corp., No. 17-3942, which are resolved today in separate decisions.

1 RANDALL PUTNAM, CHERYL RIOS, ROBERT RIOS, 2 Plaintiffs-Appellees, 3 - v. -

4 SAINT-GOBAIN PERFORMANCE PLASTICS CORP., HONEYWELL 5 INTERNATIONAL INC., f/k/a ALLIED-SIGNAL INC.,

6 Defendants-Appellants.** 7 ______________________________________________________________

8 Before: KEARSE, POOLER, and CARNEY, Circuit Judges. 9 Defendants, the owner and a past owner of a manufacturing facility 10 using a chemical, perfluorooctanoic acid ("PFOA"), and disposing of that chemical in 11 a manner that contaminated the water supply in the Village of Hoosick Falls, New 12 York, appeal pursuant to 28 U.S.C. § 1292(b) from so much of an order of the United 13 States District Court for the Northern District of New York, Lawrence E. Kahn, Judge, 14 as denied defendants' motion under Fed. R. Civ. P. 12(b)(6), in 16 temporarily 15 consolidated actions, to dismiss plaintiff Village residents' (1) claims of negligence 16 and strict liability for (a) personal injury in the nature of accumulation of PFOA in the 17 blood, thereby increasing risks of various types of illness, and (b) damage to owned 18 property; (2) claims of trespass and nuisance for contamination of water in privately

** The Clerk of Court is directed to amend the official caption to conform with the above.

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1 owned wells; and (3) requests for the costs of medical monitoring as consequential 2 damage for (a) personal injury or (b) damage to property, see Benoit v. Saint-Gobain 3 Performance Plastics Corp., No. 16-CV-930, etc., 2017 WL 3316132 (Aug. 2, 2017). 4 Defendants contend principally that these rulings are foreclosed by Caronia v. Philip 5 Morris USA, Inc., 22 N.Y.3d 439 (2013), and 532 Madison Ave. Gourmet Foods, Inc. v. 6 Finlandia Center, Inc., 96 N.Y.2d 280 (2001). We conclude that the court properly 7 denied defendants' motion to dismiss the claims of injury to persons or property, and 8 for medical monitoring with respect to personal injury. As to the ruling that costs of 9 medical monitoring can be awarded on the basis solely of injury to property, we 10 conclude that because plaintiffs request various types of relief in addition to medical 11 monitoring, the ruling that medical monitoring is available relief for property damage 12 is not one that meets the criteria for immediate review under 28 U.S.C. § 1292(b); we 13 thus dismiss, as improvidently allowed, so much of the appeal as seeks review of that 14 part of the district court's order. 15 Affirmed in part; dismissed in part.

16 STEPHEN G. SCHWARZ, Rochester, New York (Faraci 17 Lange, Rochester, New York; Hunter J. Shkolnik, 18 Tate J. Kunkle, Napoli Shkolnik, Melville, New York, 19 on the brief), for Plaintiffs-Appellees.

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1 SHEILA L. BIRNBAUM, New York, New York (Mark S. 2 Cheffo, Bert L. Wolff, Lincoln Davis Wilson, Quinn 3 Emanuel Urquhart & Sullivan, New York, New York; 4 Dechert, New York, New York, on briefs), for 5 Defendant-Appellant Saint-Gobain Performance Plastics 6 Corp.

7 ARNOLD & PORTER KAYE SCHOLER, Washington, D.C. 8 (Michael D. Daneker, Elissa J. Preheim, Washington, 9 D.C.; Jennifer R. Kwapisz, Arnold & Porter Kaye 10 Scholer, New York, New York, of counsel), for 11 Defendant-Appellant Honeywell International Inc.

12 Environmental & Natural Resources Law Clinic, Vermont 13 Law School, South Royalton, Vermont (Kenneth J. 14 Rumelt, of counsel) and EarthJustice, New York, 15 New York (Eve C. Gartner, Suzanne Novak, of 16 counsel), filed a brief for Amici Curiae Alliance of Nurses 17 for Healthy Environments, American Academy of 18 Pediatrics - New York State Chapters 1, 2 and 3, Capital 19 Area Urban League, Center for Environmental Health, 20 Clean and Healthy New York, Inc., Clean Water Action, 21 Connecticut Coalition for Environmental Justice, Great 22 Neck Breast Cancer Coalition, Huntington Breast Cancer 23 Action, Vermont Natural Resources Council, Vermont 24 Public Interest Research Group, Hope Grosse, and Joanne 25 Stanton, in support of Plaintiffs-Appellees.

26 Reed Smith, New York, New York (James M. Beck, 27 Philadelphia, Pennsylvania; Daniel K. Winters, New 28 York, New York, of counsel) filed a brief for Amici 29 Curiae Product Liability Advisory Council, Inc. & 30 National Association of Manufacturers, in support of 31 Defendants-Appellants.

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1 Alston & Bird, Charlotte, North Carolina (David 2 Venderbush, New York, New York; Brian D. Boone, 3 Charlotte, North Carolina, of counsel), filed a brief for 4 Amici Curiae Chamber of Commerce of the United States 5 of America, Pharmaceutical Research and Manufacturers 6 of America, and The Business Council of New York State, 7 Inc., in support of Defendants-Appellants.

8 KEARSE, Circuit Judge: 9 Defendants Saint-Gobain Performance Plastics Corp. ("Saint-Gobain") 10 and Honeywell International Inc., f/k/a Allied-Signal Inc. ("Honeywell"), respectively 11 the owner and a past owner of a manufacturing facility using perfluorooctanoic acid 12 ("PFOA") and disposing of that chemical in a manner that contaminated the water 13 supply in the Village of Hoosick Falls, New York (the "Village"), appeal pursuant to 14 28 U.S.C. § 1292(b) from so much of an order of the United States District Court for 15 the Northern District of New York, Lawrence E. Kahn, Judge, as denied defendants' 16 motion under Fed. R. Civ. P. 12(b)(6) to dismiss claims in these 16 actions by plaintiffs 17 Village residents Thelma Benoit, et al., (1) of negligence and strict liability for (a) 18 personal injury in the nature of accumulation of PFOA in the blood, thereby 19 increasing risks of various types of illness, and (b) damage to owned property; (2) of 20 trespass and nuisance for contamination of water in privately owned wells; and (3)

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1 for the costs of medical monitoring as consequential damages for (a) personal injury 2 or (b) damage to property. Defendants contend principally that these rulings are 3 foreclosed by Caronia v. Philip Morris USA, Inc., 22 N.Y.3d 439, 982 N.Y.S.2d 40 (2013) 4 ("Caronia" or "Caronia II"), and 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Center, 5 Inc., 96 N.Y.2d 280, 727 N.Y.S.2d 49 (2001) ("532 Madison"). For the reasons that 6 follow, we conclude that the court properly denied defendants' motion to dismiss the 7 claims of injury to persons or property, and for medical monitoring with respect to 8 personal injury. As to the ruling that costs of medical monitoring can be awarded on 9 the basis solely of injury to property, we conclude that, as plaintiffs have requested 10 a variety of relief in addition to medical monitoring, the ruling that medical 11 monitoring is available relief for property damage does not meet the criteria for 12 immediate review under 28 U.S.C. § 1292(b); we thus dismiss, as improvidently 13 allowed, so much of the appeal as seeks review of that part of the district court's 14 order.

15 I. BACKGROUND

16 In the present 16 diversity actions, which have been consolidated for this 17 appeal, plaintiffs are residents of the Village who have asserted claims against

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1 defendants for the effects of PFOA on their health and/or property. Defendants 2 sought dismissal of each action for failure to state a claim on which relief can be 3 granted, contending that plaintiffs' claims are foreclosed by various principles of New 4 York law. As the parties agreed that each action raises essentially similar issues, the 5 district court consolidated the cases for purposes of entertaining and deciding a 6 consolidated Rule 12(b)(6) motion by defendants. See Benoit v. Saint-Gobain 7 Performance Plastics Corp., No. 16-CV-930, etc., 2017 WL 3316132 (Aug. 2, 2017) 8 ("Benoit I"). 9 The factual allegations in plaintiffs' complaints, taken as true for 10 purposes of considering a Rule 12(b)(6) motion, are more fully set forth in the district 11 court's opinion in Benoit I, familiarity with which is assumed. We summarize them 12 briefly here.

13 A. PFOA Contamination in Hoosick Falls 14 PFOA is a chemical used in making household and commercial products 15 that resist heat and chemical reactions--such as teflon-coated cookware--and fabrics 16 that repel oil, stains, grease, and water. Since at least as early as 1986, a 17 manufacturing facility in the Village has used PFOA to create such products (the

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1 "Facility"). For a decade the Facility was owned by Honeywell; for the last two 2 decades it has been owned by Saint-Gobain. 3 Production activity at the Facility, such as applying a solution containing 4 PFOA to fabrics in large trays and emptying leftover solution into floor drains, caused 5 PFOA to enter the ground. PFOA thus disposed of at the Facility ultimately moved 6 through the soil into Village groundwater and has contaminated the drinking water-- 7 both for the 95% of the Village's approximately 4,500 residents who acquire their 8 water from municipal wells and for others who receive their water from privately 9 owned wells. 10 PFOA can persist in the environment, particularly in water, for many 11 years, and it is readily absorbed after consumption, accumulating in, inter alia, the 12 blood stream.

13 [S]tudies show associations between increased PFOA levels in 14 blood and an increased risk of[, inter alia,] . . . effects on the liver, 15 the immune system, high cholesterol levels, . . . high blood 16 pressure, changes in thyroid hormone, ulcerative colitis . . . , pre- 17 eclampsia . . . , and kidney and testicular cancer. . . . These health 18 conditions can arise months or years after exposure to PFOA.

19 Benoit I, 2017 WL 3316132, at *2 (internal quotation marks and citation omitted).

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1 In 2014 and 2015, the Village conducted numerous tests on its water 2 supply. The tests detected PFOA levels in municipal wells of up to 662 parts per 3 trillion ("PPT"), in private wells of up to 412 PPT, and in groundwater near the Facility 4 of up to 18,000 PPT. In late 2015, the United States Environmental Protection Agency 5 ("EPA") recommended that an alternative water source be provided to Village 6 residents until PFOA levels subsided, and it advised that residents not drink, or cook 7 with, the water. In 2016, the EPA issued an advisory indicating that health effects 8 may result from exposure to concentrations of PFOA in drinking water above 70 PPT. 9 In 2015, Saint-Gobain had entered into an agreement with the Village to 10 provide free bottled water to residents and to fund a filtration system at the municipal 11 water treatment plant. In mid-2016, after New York State ("State") had investigated 12 and placed the Facility on the State Superfund list as a site presenting a significant 13 threat to public health--and had asked the EPA to designate the Facility as a federal 14 Superfund site--defendants entered into consent orders with the State, agreeing to 15 fund the installation and maintenance of filtration systems for the municipal water 16 supply and provide residents with bottled water until a full-capacity filtration system 17 was installed.

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1 B. The Present Actions 2 Plaintiffs' actions were commenced in the second half of 2016, asserting 3 claims of negligence, strict liability, trespass, and nuisance for harm to their persons 4 and/or properties as a result of defendants' contaminating the Village's water with 5 dangerous levels of PFOA and defendants' failure to notify plaintiffs of the 6 contamination in a timely manner. As to personal injury, a majority of the plaintiffs 7 principally allege that their exposure to PFOA has caused elevated levels of PFOA in 8 their blood, in turn causing them increased risk of several serious health problems. 9 With respect to the claims of property damage, plaintiffs assert that the 10 use of PFOA in manufacturing constituted an ultra-hazardous activity for which 11 defendants are strictly liable, and that defendants' negligence caused PFOA to 12 trespass onto their land. Plaintiffs allege that the contamination of potable drinking 13 water at their homes constitutes substantial interference with their use and enjoyment 14 of their property. They also allege that the defendants' contamination of the Hoosick 15 Falls public aquifer and the private wells in the Village (a) forces, or will force, 16 plaintiffs to expend moneys to test, monitor, and remediate the effects of the PFOA, 17 and (b) has caused the value of their property to be significantly decreased.

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1 As relief, all of the plaintiffs' complaints request, among other things,

2 A. a declaration that Defendants acted with negligence, 3 gross negligence, and/or willful, wanton, and careless disregard 4 for the health, safety, and property of Plaintiffs.

5 B. an order requiring that Defendants implement a testing 6 and monitoring protocol to test Plaintiffs' property and its 7 drinking water, and to implement appropriate remedial measures.

8 C. an order establishing a medical monitoring protocol for 9 Plaintiffs.

10 D. an award to Plaintiffs of general, compensatory, 11 exemplary, consequential, nominal, and punitive damages . . . .

12 (E.g., Benoit Complaint, WHEREFORE ¶¶ A-D.)

13 1. Defendants' Motion To Dismiss 14 As indicated above, the district court consolidated the complaints in 15 plaintiffs' 16 actions, permitting defendants to file a consolidated Rule 12(b)(6) motion 16 to dismiss. Defendants' motion argued that plaintiffs failed to allege either personal 17 or property injuries that are cognizable under New York law. As to personal injury, 18 defendants contended principally--to the extent relevant to these appeals--that 19 Caronia, 22 N.Y.3d 439, 982 N.Y.S.2d 40, bars recovery in tort for alleged "threat[s] of 20 future harm . . . . absent any evidence of present physical injury or damage to property."

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1 (Memorandum in Support of Defendants' Joint Consolidated Motion To Dismiss the 2 Individual Plaintiffs' Claims ("Def. Mem.") at 10 (internal quotation marks omitted) 3 (emphasis in Def. Mem.).) Defendants argued that mere accumulation of elevated 4 levels of PFOA in the blood did not constitute physical injury and that the personal 5 injury claims of those plaintiffs who could not allege more than such an accumulation 6 should be dismissed. 7 As to plaintiffs' claims of property damage, defendants argued 8 principally that, in the absence of physical damage, 532 Madison, 96 N.Y.2d 280, 727 9 N.Y.S.2d 49, precludes recovery in tort for harm that is exclusively economic, and that 10 because "groundwater is not private property," plaintiffs could not base property 11 damage claims on "alleged injury to groundwater" (Def. Mem. at 9). Defendants also 12 urged dismissal of all property claims of plaintiffs who rented their homes, on the 13 theory that they lacked ownership interest, and dismissal of all claims of nuisance, on 14 the theory that private nuisance is by definition a tort that threatens one or a few 15 persons, not one that impacts the whole community.

16 2. The District Court's Decision 17 The district court granted defendants' motion in part and denied it in 18 part. Only the denials are at issue on the present appeals.

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1 As a general matter, the court rejected defendants' interpretation of 2 Caronia as requiring personal injury claimants to allege "symptoms or disease," and 3 concluded instead that Caronia permits such claimants to allege injury in the form of 4 "accumulation of a toxic substance." Benoit I, 2017 WL 3316132, at *9-*10. 5 Accordingly, as to plaintiffs who do not allege that they have symptoms or disease, 6 the court denied defendants' motion to dismiss the personal injury claims of those 7 who claim elevated blood levels of PFOA (referring to them as the "Accumulation 8 Plaintiffs"). Id. at *10. 9 The court also ruled that even if such accumulation were not enough to 10 constitute personal injury, Caronia allows claimants to pursue medical monitoring 11 costs as "consequential damages for a tort alleging injury to property." Id. (internal 12 quotation marks omitted). This ruling also preserved the medical monitoring claims 13 of two plaintiffs who did not claim disease, or symptoms, or blood levels with 14 elevated PFOA, but who were property owners claiming injury to their property. 15 As to defendants' contention that plaintiffs' claims of property damage 16 were not cognizable because groundwater is not private property, the court denied 17 defendants' motion to the extent that it sought dismissal of claims asserted by 18 plaintiffs who are not merely renters but property owners. The court observed, inter

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1 alia, that the authority cited by defendants involved neither a claim of negligence nor 2 injury to the claimants' drinking water, see id. at *7. The court also stated that even 3 under defendants' reading of 532 Madison as requiring some damage beyond 4 groundwater contamination or home-devaluation, those plaintiffs who owned 5 property sought damages for "loss of their potable water supply," and that is "an 6 injury that is not fairly categorized as purely economic in nature." Benoit I, 2017 WL 7 3316132, at *9 (internal quotation marks omitted). The court ruled that owners also 8 stated viable claims for "the cost of remediating the contamination." Id. 9 The court also declined to dismiss the claims of owners of private wells 10 for trespass and nuisance. As to trespass, it noted that although defendants argued 11 that such an action could not be based on injury to groundwater because 12 groundwater is not private property, the cases on which they relied for that 13 proposition did not involve owners of private wells. See id. at *10-*11. As to claims 14 of nuisance, the court ruled that--while contamination of the Village wells, from 15 which some 95% of the residents received their water, was so widespread as to 16 constitute not a private nuisance but a public nuisance for which only the Village, not 17 individuals, had standing to sue--those plaintiffs who owned private wells could 18 maintain actions for private nuisance, as the contamination imposed a special burden 19 on them. See id. at *11-*12.

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1 The court certified its decision for interlocutory appeal pursuant to 28 2 U.S.C. § 1292(b), and we granted defendants' timely petition for leave to appeal.

3 II. DISCUSSION

4 On appeal, defendants contend principally that New York tort law (1) 5 precludes an action for personal injury based solely on allegations of elevated blood 6 levels of PFOA without allegation of disease or symptoms of disease (i.e., claims of 7 asymptomatic Accumulation Plaintiffs); (2) precludes an award of the costs of 8 medical monitoring as consequential damages (a) for asymptomatic Accumulation 9 Plaintiffs, or (b) for injury merely to property; (3) precludes property damage claims 10 for negligence, strict liability, or trespass based solely on contamination of 11 groundwater and/or alleged loss in the economic value of residential homes; and (4) 12 precludes nuisance claims by individuals for contamination of their owned wells, as 13 the water supply was contaminated for the entire community. For the reasons that 14 follow, we conclude that the district court properly rejected these contentions with 15 respect to all but that challenging the availability of the costs of medical monitoring 16 as consequential damages for injury to property; as to the latter, we conclude that it

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1 is not an issue that meets the criteria for immediate review under 28 U.S.C. § 1292(b), 2 and we thus do not resolve it. (See Part II.D. below.)

3 A. Whether Elevated PFOA Level in the Blood Suffices To Ground an Action for 4 Personal Injury and a Request for the Costs of Medical Monitoring

5 Under New York law, in order to recover in either negligence or strict 6 liability, claimants must prove, inter alia, that their persons or property have been 7 injured. See, e.g., Akins v. Glens Falls City School District, 53 N.Y.2d 325, 333, 441 8 N.Y.S.2d 644, 648 (1981) (personal injury, negligence); Kimbar v. Estis, 1 N.Y.2d 399, 9 403, 153 N.Y.S.2d 197, 199 (1956) (same); Voss v. Black & Decker Manufacturing Co., 59 10 N.Y.2d 102, 106, 463 N.Y.S.2d 398, 401-02 (1983) (personal injury, strict liability); In re 11 Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 725 F.3d 65, 117 (2d Cir. 12 2013) ("MTBE") (property damage, negligence); see generally id. at 98, 107-09 (property 13 damage and strict liability). 14 The most recent discussion, by New York's highest court, of tort 15 principles relevant to the personal injury claims in these actions is the New York 16 Court of Appeals' 2013 decision in Caronia II, 22 N.Y.3d at 446, 982 N.Y.S.2d at 43. The 17 case was brought in federal court by inveterate cigarette smokers who stated that the 18 "Plaintiffs do not allege personal injury in this case," Caronia v. Philip Morris USA, Inc.,

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1 715 F.3d 417, 428 (2d Cir. 2013) ("Caronia I") (internal quotation marks omitted), and 2 sought purely equitable relief in the form of a judgment requiring the cigarette 3 manufacturer to fund a court-supervised program of medical surveillance for the 4 early detection of lung cancer. On appeal, the plaintiffs thus urged us to conclude 5 that New York law permitted an independent equitable action for medical 6 monitoring. Unable to discern any controlling precedent in the New York cases, see, 7 e.g., id. at 434-37, we certified--insofar as is relevant here--the following question to 8 the New York Court of Appeals:

9 Under New York law, may a current or former longtime heavy 10 smoker who has not been diagnosed with a smoking-related 11 disease, and who is not under investigation by a physician for 12 such a suspected disease, pursue an independent equitable cause 13 of action for medical monitoring for such a disease?

14 Id. at 450. 15 The New York Court of Appeals answered this certified question in the 16 negative. Noting that the "Plaintiffs do not claim to have suffered physical injury or 17 damage to property," and that under New York law "[a] threat of future harm is 18 insufficient to impose liability against a defendant in a tort context," Caronia II, 22 19 N.Y.3d at 446, 982 N.Y.S.2d at 43, the Court considered whether judicial "recogni[tion 20 of] a new tort, namely, an equitable medical monitoring cause of action," absent

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1 physical injury, would be consistent with existing New York law, id. at 447, 982 2 N.Y.S.2d at 43. In so considering, the Court discussed several decisions of New 3 York's intermediate appellate courts, focusing principally on Askey v. Occidental 4 Chemical Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242 (4th Dep't 1984) ("Askey"), and Abusio 5 v. Consolidated Edison Co., 238 A.D.2d 454, 656 N.Y.S.2d 371 (2d Dep't 1997) ("Abusio"), 6 lv. denied, 90 N.Y.2d 806 (1997). 7 In Askey, in addressing the toxic tort claims of those plaintiffs who 8 alleged injuries "characterized as" not "manifest" but "latent," i.e., "injuries which have 9 not surfaced but which may afflict them in the future," 102 A.D.2d at 132-33, 477 10 N.Y.S.2d at 245, the Appellate Division had stated that

11 "damages resulting from the enhanced risk of cancer and the 12 threat of future harm not yet realized are not compensable in a tort 13 action . . . , [but that] there is a basis in law to sustain a claim for 14 medical monitoring as an element of consequential damage" . . . .

15 Caronia II, 22 N.Y.3d at 447, 982 N.Y.S.2d at 44 (quoting Askey, 102 A.D.2d at 135, 477 16 N.Y.S.2d at 246 (emphases in Caronia II)); see also Askey, 102 A.D.2d at 137, 477 17 N.Y.S.2d at 247 (stating that the plaintiffs exposed to landfill toxins had "an increased 18 risk of invisible genetic damage and a present cause of action for their injury," and 19 could recover "'reasonably anticipated' consequential damages," including medical

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1 monitoring, so long as they could "establish with a reasonable degree of medical 2 certainty that such expenditures [were] 'reasonably anticipated' to be incurred by 3 reason of their exposure"). 4 However, the Caronia II Court pointed out that Askey had derived its 5 rationale from the Court of Appeals' 1936 decision in Schmidt v. Merchants Despatch 6 Transp. Co., 270 N.Y. 287, 200 N.E. 824 (1936) ("Schmidt"); and in Schmidt, the issue 7 before the court was the date on which the toxic tort cause of action accrued. See 8 Caronia II, 22 N.Y.3d at 447, 982 N.Y.S.2d at 44. The Caronia II Court pointed out that

9 [e]ven in Schmidt, . . . this Court required some injury or damage to 10 the plaintiff before he could recover. Having concluded that the 11 injury or damage occurred at the time of "invasion" of the 12 plaintiff's "personal or property rights," we addressed the issue of 13 damages, holding that "[c]onsequential damages may flow later 14 from an injury too slight to be noticed at the time it is inflicted. 15 No new cause of action accrues when such consequential damages 16 arise. So far as consequential damages may be reasonably anticipated, 17 they may be included in a recovery for the original injury, though 18 even at the time of the trial they may not yet exist" . . . .

19 Id. (quoting Schmidt, 270 N.Y. at 300-01, 200 N.E. at 827 (first emphasis added; 20 subsequent emphases in Caronia II)). 21 The Caronia II Court noted that Askey and Schmidt were decided before 22 the 1986 enactment of N.Y. C.P.L.R. § 214-c, which makes specific provisions as to the

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1 time at which the statute of limitations would begin to run on a personal injury action 2 for damages caused by the latent effects of exposure to harmful substances:

3 The accrual rule set forth in Schmidt, and referenced in Askey, was 4 replaced by CPLR 214-c, which requires a plaintiff to initiate a 5 cause of action for personal injury damages caused by the latent 6 effects of exposure to harmful substances within three years from 7 the date the injury was discovered or could have been discovered 8 "through the exercise of reasonable diligence."

9 Neither Schmidt nor Askey questioned this State's long-held 10 physical harm requirement; rather, they merely accepted, for accrual 11 purposes, that the injury accrued at the time of exposure. In light of 12 section 214-c's enactment in 1986 (well after Askey and Schmidt), 13 the Askey court's holding that persons who are exposed to toxins 14 may recover all "'reasonably anticipated' consequential damages," 15 . . . must be viewed in its proper context. Given that the injuries 16 in Askey and Schmidt were deemed (for accrual purposes) to have 17 been sustained at the time of exposure, it is understandable why 18 the Courts in those cases would have concluded that any and all 19 damages flowing from those "injuries," including damages for 20 medical monitoring, would be potentially recoverable as 21 consequential damages.

22 Caronia II, 22 N.Y.3d at 448, 982 N.Y.S.2d at 44-45 (last emphasis in original; other 23 emphases added). 24 The Court noted that in cases decided since 214-c's enactment,

25 [t]he Appellate Divisions have consistently found that 26 medical monitoring is an element of damages that may be recovered 27 only after a physical injury has been proven, i.e., that it is a form of 28 remedy for an existing tort. For instance, in Abusio v Consolidated

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1 Edison Co. of N.Y. (238 AD2d 454, 656 NYS2d 371 [2d Dept 1997], 2 lv denied 90 NY2d 806, 686 NE2d 1363, 664 NYS2d 268 [1997]), 3 where the plaintiffs brought a negligence cause of action arising 4 out of exposure to toxins, the Court concluded that the trial court 5 properly set aside the damage awards for . . . medical monitoring, 6 holding that although plaintiffs established that they were exposed 7 to toxins, they failed to establish that they had a "rational basis" 8 for their fear of contracting the disease, i.e., they failed to establish 9 a "clinically demonstrable presence of [toxins] in the plaintiff's body, or 10 some indication of [toxin]-induced disease, i.e., some physical 11 manifestation of [toxin] contamination" (id. at 454-455).

12 Caronia II, 22 N.Y.3d at 448-49, 982 N.Y.S.2d at 45 ("existing" emphasized in original; 13 other emphases ours). 14 Caronia II stated, with apparent approval, that "[c]ourts have followed the 15 test enunciated in Abusio in a number of cases where medical monitoring was sought 16 as an element of damages," id. at 449, 982 N.Y.S.2d at 45 (emphasis added) (citing 17 cases); see id. ("in order to obtain medical monitoring damages, plaintiff must establish 18 'clinically demonstrable presence' of toxins in the body or evidence of toxin-induced 19 disease" (quoting Allen v. General Electric Co., 32 A.D.3d 1163, 1165, 821 N.Y.S.2d 692, 20 694 (4th Dep't 2006))). However, the Caronia II Court also noted that in each of the 21 cases it cited, "the plaintiffs alleged either personal injury or property damage or 22 both," id.; and it cautioned that "[t]o the extent that any of these, or other, cases can be 23 read as recognizing an independent cause of action for medical monitoring absent

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1 allegation of any physical injury or property damage, they should not be followed," 2 id. at 449 n.2, 982 N.Y.S.2d at 45 n.2 (emphasis added). 3 In sum, the Caronia II Court thus answered in the negative this Court's 4 certified question as to whether New York law recognizes an action for medical 5 monitoring independently of the presence of a traditionally recognized tort cause of 6 action. Given its discussion in reaching that conclusion, we interpret Caronia II's 7 recounting of the general New York tort law principles, together with its apparent 8 approval of the test enunciated in Abusio--"clinically demonstrable presence of [toxins] 9 in the plaintiff's body, or some indication of [toxin]-induced disease, i.e., some physical 10 manifestation of [toxin] contamination"--to mean (a) that an action for personal injury 11 cannot be maintained "absent allegation of any physical injury"; (b) that it is, however, 12 sufficient to allege "some injury"; and (c) that to meet the requirement to plead "some" 13 physical injury, it is sufficient to allege that "in the plaintiff's body" there is either a 14 "clinically demonstrable presence of toxins" "or some physical manifestation of toxin 15 contamination." (All emphases ours.) We understand the word "clinical" in this 16 context to refer to phenomena that are observable. See Webster's Third New 17 International Dictionary 423 (2002) (defining "clinical" as, inter alia, "involving or 18 depending on direct observation . . ." or "observable by clinical inspection"); see also

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1 id. at 1793 (defining "present" as, inter alia, "now existing or in progress"); id. 2 (illustrating "presence" as, e.g., "the presence of free nitrogen bubbles in the body 3 tissues"). 4 We conclude that under Caronia II, allegations of the physical 5 manifestation of or clinically demonstrable presence of toxins in the plaintiff's body 6 are sufficient to ground a claim for personal injury and that for such a claim, if 7 proven, the plaintiff may be awarded, as consequential damages for such injury, the 8 costs of medical monitoring. 9 In the present case, as set out in Parts I.A. and B. above, the complaints 10 include the following allegations. PFOA is a toxic substance; studies show 11 associations between increased PFOA levels in the blood and numerous health 12 problems. The EPA issued an advisory indicating that drinking water having 13 concentrations of PFOA higher than 70 PPT may be harmful to one's health. The 14 Village's testing of its water in 2014 and 2015 revealed PFOA levels from 412 PPT to 15 18,000 PPT. The EPA advised Village residents not to drink or even cook with water 16 from the Village's aquifer. Not having been timely warned by defendants of the 17 contamination of the Village's groundwater by PFOA, most of the plaintiffs in these 18 appeals have accumulated elevated levels of PFOA in their blood. With reasonable

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1 inferences being drawn in favor of plaintiffs, the allegation that their blood shows 2 PFOA levels that are "elevated" also indicates that the PFOA is present to a degree 3 that is measurable. The observable and measurable presence of that toxin in the 4 blood clearly passes the Abusio threshold for what constitutes personal injury 5 sufficient under New York law to ground a tort cause of action. 6 Accordingly, the district court correctly ruled that the Accumulation 7 Plaintiffs sufficiently alleged personal injury under New York law to permit them to 8 request the costs of medical monitoring. Defendants' Rule 12(b)(6) motion to dismiss 9 their personal injury claims was properly denied.

10 B. Whether an Action for Property Damage--Based on Negligence, Strict Liability, 11 or Trespass--May Be Maintained for Contamination of Land or Groundwater

12 Defendants contend that the property damage claims by plaintiff 13 property owners alleging negligence, strict liability, and trespass should have been 14 dismissed, arguing that claims of injury to groundwater are not legally cognizable 15 because groundwater is a public resource rather than private property. They also 16 contend, relying on 532 Madison, that claims that the plaintiffs' homes have decreased 17 in value concern purely economic losses that are unrecoverable. We are 18 unpersuaded.

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1 1. Negligence and Strict Liability 2 In support of their contention that New York law does not recognize a 3 tort action for property damage consisting of groundwater contamination, defendants 4 quote Sweet v. City of Syracuse, 129 N.Y. 316, 335, 27 N.E. 1081, 1084 (1891) ("Sweet") 5 ("no absolute property can be acquired in flowing water"); and they principally cite 6 City of Syracuse v. Gibbs, 283 N.Y. 275, 283, 28 N.E.2d 835, 838 (1940) ("Gibbs") (the state 7 has a duty "to control and conserve its water resources for the benefit of all the 8 inhabitants of the State"); Ivory v. International Business Machines Corp., 116 A.D.3d 121, 9 130, 983 N.Y.S.2d 110, 117 (3d Dep't 2014) ("Ivory") ("groundwater does not belong to 10 the owners of real property"); and MTBE, 725 F.3d at 109 n.31 ("the City does not 11 actually own the water in [its wells]"). 12 These cases are inapposite. Neither Sweet nor Gibbs involved any issue 13 of tort liability or water contamination; rather, both dealt with state appropriation of 14 lake water for private use. See Sweet, 129 N.Y. at 334-35, 27 N.E. at 1084; Gibbs, 283 15 N.Y. at 281-83, 28 N.E.2d at 837-39. The Ivory court, in stating that "groundwater does 16 not belong to the owners of real property," was dealing with a claim for trespass, not 17 one for negligence or strict liability, see 116 A.D.3d at 130, 983 N.Y.S.2d at 117; further,

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1 that case did not involve a claim either that the contamination had rendered the Ivory 2 plaintiffs' drinking water supply non-potable or that the contamination had 3 necessitated costly remediation, see id. at 125-29, 983 N.Y.S.2d at 113-17. And in 4 MTBE, this Court, applying New York law, see 725 F.3d at 105, upheld a jury verdict 5 in favor of the plaintiffs on their claim of negligence, see id. at 117-18, finding that the 6 claimants could recover for remedial "costs incurred and projected" due to the well 7 contamination at issue, id. at 107; see id. at 107-09. 8 Notwithstanding a general principle that no absolute property right can 9 be had in flowing water, New York courts in cases involving "pollution of 10 underground waters" have held that a claim of negligence "may be founded . . . upon 11 a demonstration that" the defendant, inter alia, "failed to exercise due care in 12 conducting the allegedly polluting activity." Murphy v. Both, 84 A.D.3d 761, 762, 922 13 N.Y.S.2d 483, 485 (2d Dep't 2011) (affirming denial of summary judgment on 14 negligence claim that defendant's underground fuel tank caused "contamination of 15 the adjacent real property"); see also Strand v. Neglia, 232 A.D.2d 907, 908, 649 N.Y.S.2d 16 729, 730 (3d Dep't 1996) (granting summary judgment dismissing claims of negligence 17 and strict liability because of lack of "evidence of [defendant's] actual or constructive 18 notice of defects in the underground storage tanks during the [relevant] period"); Flick

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1 v. Town of Steuben, 199 A.D.2d 970, 970-71, 605 N.Y.S.2d 602, 603 (4th Dep't 1993) (as 2 to a claim that defendant's salt pile had contaminated a well on plaintiff's adjacent 3 property, reversing dismissal of the claim at the close of plaintiff's proof at trial). We 4 see no error in the district court's denial of defendants' Rule 12(b)(6) motion to 5 dismiss plaintiffs' negligence or strict liability claims for property damage.

6 2. The Private Well Owners' Claims for Trespass 7 To succeed on a trespass claim under New York law, a plaintiff must 8 "show an interference with [its] right to possession of real property." MTBE, 725 F.3d 9 at 119 (internal quotation marks omitted). The right to possession is thus "an essential 10 element of a trespass action." Niagara Falls Redevelopment, LLC v. Armand Cerrone, Inc., 11 28 A.D.3d 1138, 1138, 814 N.Y.S.2d 427, 428 (4th Dep't 2006) (internal quotation marks 12 and alterations omitted). Defendants, in contending that plaintiffs who own private 13 wells cannot state claims for trespass based on the contamination of those wells, 14 principally repeat their argument that property damage claims cannot be based on 15 harm to groundwater, again citing Ivory, which rejected "trespass claims based on 16 contaminated groundwater, because groundwater does not belong to the owners of real 17 property," Ivory, 116 A.D.3d at 130, 983 N.Y.S.2d at 117 (emphasis added).

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1 Again, however, we find Ivory inapposite in this context because it did 2 not involve contamination of a private well. In cases that did involve contamination 3 of private wells, New York cases have found claims of trespass cognizable. See, e.g., 4 Baity v. General Electric Co., 86 A.D.3d 948, 948-49, 951, 927 N.Y.S.2d 492, 493, 495 (4th 5 Dep't 2011) ("Baity") (where there was no dispute that plaintiffs' "drinking water wells 6 were contaminated" with a toxin, court affirmed the denial of defendants' motion for 7 summary judgment as to claims of trespass, concluding there were "triable issues of 8 fact" as to whether the defendant had reason to know the "toxins would pass from its 9 industrial plant to plaintiffs' property" (internal quotation marks omitted)); Kiley v. 10 State of New York, 74 A.D.2d 917, 917, 426 N.Y.S.2d 78, 78 (2d Dep't 1980) (affirming 11 judgment in favor of plaintiff on trespass claim "predicated on defendant's failure to 12 properly maintain its salt stockpiles," which resulted in the contamination of 13 "claimant's well water").

14 3. Diminution of Home Values 15 Defendants also contend that plaintiffs' claims of property damage 16 should have been dismissed on the basis that the law in New York as announced in 17 532 Madison is that owners of property, in the absence of damage to that property,

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1 have no cause of action for diminution of the value of the property. We disagree. 2 532 Madison dealt with several negligence suits brought in response to 3 construction-related building collapses in midtown Manhattan. See 96 N.Y.2d at 286, 4 727 N.Y.S.2d at 51. The plaintiffs were local business owners whose physical 5 properties were unharmed, but whose businesses suffered because the collapses 6 necessitated blocking traffic and pedestrian access to plaintiffs' premises. The Court 7 of Appeals ruled that such complaints, "where plaintiffs' sole injury is lost income," 8 id., should be dismissed for failure to state a cognizable claim, see id. at 292, 727 9 N.Y.S.2d at 55. 10 Noting generally that "[a] landowner who engages in activities that may 11 cause injury to persons on adjoining premises surely owes those persons a duty to 12 take reasonable precautions to avoid injuring them," the Court stated that it "ha[d] 13 never held . . . that a landowner owes a duty to protect an entire urban neighborhood 14 against purely economic losses," id. at 290, 727 N.Y.S.2d at 54, and it ruled that the 15 business owners' negligence claims "based on economic loss alone f[e]ll beyond the 16 scope of the duty owed them . . . and should be dismissed," id. at 292, 727 N.Y.S.2d 17 at 55. See also our opinion filed today in one of the two cases argued in tandem with 18 the present appeals, R.M. Bacon, LLC v. Saint-Gobain Performance Plastics Corp., No.

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1 18-2018, --- F.3d ---, --- (2d Cir. 2020) (reversing denial of defendants' motion to 2 dismiss the negligence claim of the corporate plaintiff, which plausibly claimed only 3 loss of income). 4 532 Madison does not, however, require dismissal of property damage 5 claims where the plaintiff alleges more than just lost business income. See, e.g., 6 532 Madison, 96 N.Y.2d at 290, 727 N.Y.S.2d at 54 (noting with approval the Appellate 7 Division's decision in Dunlop Tire & Rubber Corp. v. FMC Corp., 53 A.D.2d 150, 151-52, 8 385 N.Y.S.2d 971, 972 (4th Dep't 1976), which allowed the plaintiff to recover not only 9 for physical damage to its property caused by a nearby explosion, but also for the 10 economic loss from being forced temporarily to close because the explosion caused 11 the loss of electrical power); Cottonaro v. Southtowns Industries, Inc., 213 A.D.2d 993, 12 993, 625 N.Y.S.2d 773, 774 (4th Dep't 1995) ("consequential damages" are also available 13 when the "market value of real property" is "diminished . . . as a result of public fear 14 of exposure to a potential health hazard"). 15 In the present cases, the property owner plaintiffs are not complaining 16 of loss of income; and they seek damages not just for the diminution of the economic 17 value of their homes. They allege the ruin of their drinking water by the PFOA 18 released by defendants, and the need to expend money for remediation and clean-up.

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1 The contamination of the drinking water at a residential property and the loss of 2 wages or income at a commercial enterprise are qualitatively different injuries. We 3 see no indication in 532 Madison that the limitation on recovery of "economic loss" 4 was intended to apply to relieve users of hazardous substances of any duty to avoid 5 allowing those substances to contaminate residents' drinking water. 6 In sum, plaintiff property owners have pleaded damage to their homes 7 in the form of contamination of their drinking--and cooking--water and the need to 8 incur remedial expenses; they thus may also continue pursuit of diminution-in-value 9 damages as consequential to these harms. Accordingly, we affirm the district court's 10 denial of defendants' motion to dismiss the property owner plaintiffs' negligence and 11 strict liability claims for property damage.

12 C. Whether Plaintiffs Who Own Their Own Wells May Maintain Actions for 13 Nuisance

14 A cause of action for public nuisance "exists for conduct that amounts to 15 a substantial interference with the exercise of a common right," such as "endangering" 16 the "health[ or] safety . . . of a considerable number of persons." 532 Madison, 96 17 N.Y.2d at 292, 727 N.Y.S.2d at 56. It is "well settled that the seepage of chemical

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1 wastes into a public water supply constitutes a public nuisance." Baity, 86 A.D.3d 2 at 951, 927 N.Y.S.2d at 495. Because a "public nuisance is a violation against the 3 State," it is "subject to abatement or prosecution by the proper governmental 4 authority." 532 Madison, 96 N.Y.2d at 292, 727 N.Y.S.2d at 56. A "public nuisance is 5 actionable by a private person only if it is shown that the person suffered special 6 injury beyond that suffered by the community at large." Id. The injury must be 7 different in "kind," not simply "degree." See id. at 293-94, 727 N.Y.S.2d at 57. 8 The district court, while dismissing the public nuisance claims of the 9 plaintiffs who received their water from Village wells, ruled that in two of the present 10 actions, those brought by plaintiffs Thelma and David Benoit and plaintiffs Christine 11 and James Jensen, who own private wells, plaintiffs are entitled to pursue claims of 12 private nuisance. Defendants argue that the nuisance claims of these plaintiffs should 13 also have been dismissed because the PFOA contamination affected the entire Village, 14 and that these plaintiffs did not allege circumstances affecting them so specially as to 15 allow them to pursue claims for private nuisance. We are unpersuaded. 16 The district court noted that these well-owners alleged that they need to 17 have point-of-entry treatment systems installed on their property that would need to 18 remain in place for the foreseeable future and would require regular maintenance.

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1 These circumstances differed from the those of the 95% of the Village residents who 2 received their water from Village wells, and for whom remediation could be 3 performed at locations remote from their homes without personal inconvenience and 4 without their personal efforts. The Benoits and Jensens also allege that they are 5 entitled to recover for the costs of repair or restoration of their wells, expense and 6 inconvenience of a kind that 95% of Village residents will not incur. We see no error 7 in the ruling by the district court that the owners of private wells are entitled to 8 pursue claims of private nuisance. 9 Finally, defendants also argue that plaintiffs in the present cases will not 10 actually need to expend moneys for remediation because Village negotiations with 11 defendants have resulted in defendants' agreeing to, inter alia, provide residents with 12 filters and bottled water at no cost. Whether such agreements will actually have the 13 effect that defendants predict is not a matter for resolution on a motion to dismiss for 14 failure to state a claim.

15 D. Whether Medical Monitoring May Be Ordered for a Plaintiff Who Has No 16 Cognizable Claim for Personal Injury But Has a Claim for Property Damage

17 The district court, in rejecting defendants' contention that plaintiffs who 18 do not claim disease or symptoms of disease are as a matter of law not entitled to

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1 medical monitoring, ruled that "Caronia appears to allow medical monitoring 2 damages even if the only tort with a present 'injury' involves harm to property . . . ." 3 Benoit I, 2017 WL 3316132, at *10. Thus, the court stated that

4 even if the accumulation of PFOA in the blood were not enough . . . 5 Caronia [II] also allows plaintiffs to seek medical monitoring as 6 consequential damages for a tort alleging injury to property. . . . 7 Plaintiffs have sufficiently alleged claims for . . . torts concerning 8 property . . . . Therefore, Plaintiffs cannot be denied medical 9 monitoring damages at this stage.

10 Id. (internal quotation marks omitted) (emphases ours). Defendants' challenge to this 11 ruling--which would apply both to those Accumulation Plaintiffs who own property 12 and to plaintiffs Martha Campbell and Randall Putnam, who own property but do 13 not claim to have disease, symptoms of disease, or elevated levels of PFOA in their 14 blood--was based on an interpretation of Caronia II that may or may not be correct. 15 We think that whether New York law will allow medical monitoring to be ordered 16 solely on the basis of damage to property is unclear, but that that issue is not ripe for 17 resolution.

18 1. Lack of Clarity 19 Caronia II, in discussing the case before it, does indeed include many 20 statements that seem to view personal injury and property damage as alternative

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1 bases for the grant of medical monitoring as consequential damages. See, e.g., 22 2 N.Y.3d at 446, 982 N.Y.S.2d at 43 ("Plaintiffs do not claim to have suffered physical 3 injury or damage to property." (emphasis added)); id. at 446-47, 982 N.Y.S.2d at 43 4 ("plaintiffs' only potential pathway to relief is . . . recogni[tion of] a new tort," their 5 complaint "[h]aving alleged no physical injury or damage to property" (emphasis 6 added)); id. at 449, 982 N.Y.S.2d at 45 (in cases applying "the test enunciated in Abusio 7 . . . where medical monitoring was sought as an element of damages . . . . the plaintiffs 8 alleged either personal injury or property damage or both" (emphasis added)); id. at 449 9 n.2, 982 N.Y.S.2d at 45 n.2 (no New York case should be applied as authorizing "an 10 independent cause of action for medical monitoring absent allegation of any physical 11 injury or property damage" (emphasis added)); id. at 452, 982 N.Y.S.2d at 47 (declining 12 to create an "independent cause of action for medical monitoring" "absent any 13 evidence of present physical injury or damage to property" (emphasis added)). 14 One Appellate Division decision issued in the aftermath of Caronia II has 15 interpreted "Caronia [II] . . . [as] indicat[ing] that medical monitoring can be recovered 16 as consequential damages associated with a separate tort alleging property damage," 17 Ivory, 116 A.D.3d at 131, 983 N.Y.S.2d at 118. On that basis, the Ivory court allowed 18 "two plaintiffs [to] pursue medical monitoring damages consequential to the[ir]

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1 trespass cause of action." Id. at 132, 983 N.Y.S.2d at 118 (reversing summary judgment 2 to the extent that it dismissed a plaintiff's claim for medical monitoring relief on her 3 trespass claim for the defendant's toxic chemicals contaminating the soil under her 4 property). We note that that case ended in a settlement, rather than a final 5 adjudication and order for medical monitoring. See Ivory v. International Business 6 Machines Corp., No. 2012-0768 (N.Y. Sup. Ct. Jan. 22, 2018) (case settlement). 7 Despite Caronia II's many mentions of personal injury "or property 8 damage" and Ivory's interlocutory interpretation, it is not clear to us that New York 9 law authorizes a claim for medical monitoring solely on the basis of damage to 10 property. The context of Caronia II's discussion was the question this Court certified, 11 of whether an equitable "independent" cause of action for medical monitoring should 12 be judicially created for habitual cigarette-smokers who expressly disclaimed any 13 present personal injury, Caronia I, 715 F.3d at 450, and who did not indicate any 14 semblance of a claim for property damage. Given the certified question's focus on 15 whether New York law recognized such an independent claim for medical 16 monitoring, Caronia II's repeated mentions of personal injury "or property damage" 17 claims may have been intended simply to emphasize the dichotomy between such a 18 new independent equitable claim and traditional tort-law claims.

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1 Further, a principal rationale stated by the New York Court of Appeals 2 for declining to create an independent cause of action for medical monitoring in favor 3 of persons who have no "clinically demonstrable presence of toxins in the[ir bodies]" 4 and no "physical manifestation of toxin contamination," Caronia II, 22 N.Y.3d at 449, 5 982 N.Y.S.2d at 45 (internal quotation marks and brackets omitted), suggests that the 6 New York courts would not recognize a claim for medical monitoring based solely 7 on property damage. The Court stated that

8 dispensing with the physical injury requirement could permit "tens 9 of millions" of potential plaintiffs to recover monitoring costs, 10 effectively flooding the courts while concomitantly depleting the 11 purported tortfeasor's resources for those who have actually sustained 12 damage . . . . Moreover, it is speculative, at best, whether 13 asymptomatic plaintiffs will ever contract a disease; allowing 14 them to recover medical monitoring costs without first establishing 15 physical injury would lead to the inequitable diversion of money 16 away from those who have actually sustained an injury as a result 17 of the exposure.

18 22 N.Y.3d at 451, 982 N.Y.S.2d at 47 (emphases added). A plaintiff who has only a 19 property damage claim has, by hypothesis, no claim for personal injury, i.e., has no 20 disease, no symptoms of disease, no clinically demonstrable presence of toxins in the 21 body, no physical manifestation of any toxin contamination. While the availability 22 of medical monitoring for such a plaintiff might be legislated, the Caronia II Court's

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1 stated concern--that judicial recognition of a right to medical monitoring without 2 establishing physical injury would risk an inequitable allocation of resources--creates 3 doubt as to whether that Court meant to indicate that medical monitoring is available 4 as relief for a claim solely of property damage, e.g., for an absentee landlord. 5 In the final paragraph of its opinion in Caronia II, the New York Court of 6 Appeals stated:

7 [1] We conclude that the policy reasons set forth above 8 militate against a judicially-created independent cause of action for 9 medical monitoring. [2] Allowance of such a claim, absent any 10 evidence of present physical injury or damage to property, would 11 constitute a significant deviation from our tort jurisprudence. [3] 12 That does not prevent plaintiffs who have in fact sustained 13 physical injury from obtaining the remedy of medical monitoring. 14 [4] Such a remedy has been permitted in this State's courts as 15 consequential damages, so long as the remedy is premised on the 16 plaintiff establishing entitlement to damages on an already 17 existing tort cause of action.

18 Id. at 452, 982 N.Y.S.2d at 47-48 (emphases and brackets ours). Thus, while the second 19 sentence of this passage contrasts independent medical monitoring claims with 20 existing tort jurisprudence that requires evidence of present physical injury or 21 damage to property, the third sentence refers only to personal injury, not to property 22 damage, as a current basis for an award of medical monitoring. And while the fourth 23 sentence on its face, referring to medical monitoring as available to a "plaintiff

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1 establishing entitlement to damages on an already existing tort cause of action" may 2 appear to refer generally to all torts, the sentence may instead be interpreted as using 3 "tort" claims to refer only to claims of personal injury, as that is the only type of tort 4 mentioned in the immediately preceding sentence; and plaintiffs have not called to 5 our attention any New York case--nor have we found any--in which medical 6 monitoring was ordered for any plaintiff solely on the basis of his or her success in 7 suing for damage to property. 8 In sum, it is hardly clear to us that Caronia II envisioned authorizing an 9 award of medical monitoring to a plaintiff who has no cognizable claim for personal 10 injury but succeeds on a claim for property damage. However, we conclude that that 11 question need not be answered at this point.

12 2. Lack of Ripeness for Decision 13 These cases are before us pursuant to a procedure authorizing the court 14 of appeals to allow an immediate appeal from an interlocutory order in a civil action 15 in which the district court has certified its view (1) that the "order involves a 16 controlling question of law as to which there is substantial ground for difference of 17 opinion and [2] that an immediate appeal from the order may materially advance the

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1 ultimate termination of the litigation," 28 U.S.C. § 1292(b) (emphases added). When the 2 district court has so certified, the party wishing to appeal must petition for and obtain 3 permission from the court of appeals to bring such an immediate appeal. See id. 4 In the present case, as the foregoing discussion indicates, there is ample 5 ground for difference of opinion as to whether New York law recognizes the 6 availability of medical monitoring for a claim based solely on property damage. 7 However, as to that question, we do not see that it is controlling or that its resolution 8 at this stage may "materially" advance the termination of the litigation. 9 "Inherent in the requirements of section 1292(b) is that the issue" in the 10 certified order "be ripe for judicial determination," because the "purpose of section 11 1292(b) is not to offer advisory opinions rendered on hypotheses which (evaporate) 12 in the light of full factual development." The Oneida Indian Nation of New York State 13 v. The County of Oneida, 622 F.2d 624, 628 (2d Cir. 1980) (internal quotation marks 14 omitted); see id. at 627 (dismissing the appeal on the ground that "the petition [for 15 leave to appeal] was improvidently granted"). "[If] the premise of the certified 16 question may be destroyed, it is not yet ripe for review." Id. at 628; see also New York 17 City Health & Hospitals Corp. v. Blum, 678 F.2d 392, 397 (2d Cir. 1982) (the § 1292(b) 18 procedure does not authorize an interlocutory appeal that would result in "an

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1 advisory decision based on a premise that may be destroyed"); id. at 398 (dismissing 2 the appeal on the ground that "the § 1292(b) certification was improvidently 3 granted"). These principles lead us to the conclusion that a § 1292(b) appeal of the 4 district court's ruling that medical monitoring is available relief for property damage 5 is inappropriate. 6 As indicated above, this ruling may affect two groups of plaintiffs: (1) 7 the Accumulation Plaintiffs who also have property damage claims, and (2) plaintiffs 8 Campbell and Putnam, who now have only property damage claims. As to the 9 former, we have ruled (see Part II.A. above) that the district court properly refused to 10 dismiss their claims for personal injury, given their allegations that they have 11 elevated levels of PFOA in their blood. Thus, the Accumulation Plaintiffs have 12 cognizable claims of personal injury, a tort for which medical monitoring has 13 previously been granted as consequential damages. If they prove their personal 14 injury claims, medical monitoring is an available form of relief, without regard to 15 their claims of property damage. 16 As to plaintiffs Campbell and Putnam who are asymptomatic and have 17 not alleged elevated PFOA levels in their blood and whose claims of personal injury 18 have thus been dismissed--and as to any property-owner Accumulation Plaintiffs

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1 who eventually fail to prove their claims of personal injury--their claims of property 2 damage will have to be adjudicated. As to any such plaintiff who fails to establish an 3 element of the property damage claim, the request for medical monitoring will be 4 moot. Hence, it is difficult to see that the question of whether medical monitoring is 5 theoretically available for such a claim is a question that is controlling. 6 Further, as set out in Parts I.B. and II.B. above, these plaintiffs--like all of 7 the other plaintiff property owners--request not just medical monitoring but an array 8 of relief, including orders requiring defendants to implement testing with respect to 9 their properties and their drinking water, orders for remediation, and awards of 10 compensatory and punitive damages. To be awarded any of these other types of 11 relief, plaintiffs will need to establish all of the usual elements of a property damage 12 claim. We cannot see that an immediate answer to the question of whether medical 13 monitoring will also be available would "materially" advance the ultimate termination 14 of any of these lawsuits. 15 Accordingly, we conclude that the district court's ruling that medical 16 monitoring is available relief for a claim of property damage is not one that meets the 17 criteria for immediate review under 28 U.S.C. § 1292(b). That ruling remains 18 unreviewed until such time as, if ever, the question becomes ripe.

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1 CONCLUSION 2 We have considered all of defendants' arguments on this appeal and 3 have found in them no basis for reversal. For the reasons stated above, the order of 4 the district court, to the extent that it denied defendants' Rule 12(b)(6) motion to 5 dismiss plaintiffs' claims (1) for personal injuries and for medical monitoring in 6 connection with those injuries, (2) for property damage suffered by plaintiffs who 7 own the properties at issue, and (3) for trespass and nuisance suffered by plaintiffs 8 who own private wells, is affirmed. To the extent that appeal was allowed with 9 respect to the district court's ruling that medical monitoring relief will be available to 10 a plaintiff who proves only damage to property, we dismiss the appeal as having 11 been improvidently allowed.