CONCORD — A federal judge kept alive Wednesday nearly all of a class-action lawsuit brought against Saint-Gobain Performance Plastics that charges the firm with contaminating wells near the company’s Merrimack plant.
U.S. District Court Judge Joseph LaPlante’s 32-page decision is procedural in nature and it will require future arguments and rulings if Kevin Brown of Litchfield and his fellow residents near the plant are to recover any damages caused by perfluorooctanoic acid (PFOAs) from Saint-Gobain smokestacks that leached into the groundwater.
But this decision failed to give Saint-Gobain lawyers what they wanted, a complete dismissal of all counts that they had asked the court for last fall.
“The court denies the majority of the defendant’s motion,” LaPlante wrote.
Further, the judge pointed out the facts could entitle those lodging this suit ultimately to win on two damage counts, trespass and nuisance.
“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, the plaintiffs have alleged damage sufficient to state a claim under those theories,” LaPlante said.
The class-action lawsuit seeks compensatory and punitive damages arising out of chemical releases, discharges and leaks from the Merrimack plant, and includes damages such as loss of property values, along with costs of remediating the properties owned by plaintiffs from the toxic chemicals allegedly released from Saint-Gobain.
The lawsuit is on behalf of residents within a two-mile radius of the Saint-Gobain facility in Merrimack who have had their wells contaminated by perfluorochemicals.
Lawyers for the company did succeed in getting dismissed one of the five counts that the company could be liable for its failure to spend money to prevent this contamination, known as negative unjust enrichment.
“The court has not found any case suggesting that New Hampshire recognizes claims for negative unjust enrichment,” LaPlante said.
As for the other two counts in the suit, negligence and failure to warn these homeowners of the potential contamination, LaPlante said there wasn’t enough cause to dismiss these, so they too were kept alive.
But the judge stressed this decision does not mean those bringing the lawsuit will be entitled to those damages.
LaPlante also signaled that he may at a future date ask the New Hampshire Supreme Court to weigh in on whether the company can be made to pay the cost of medical monitoring of residents and their family members for health ailments in the future.
The company acknowledges PFOAs are used in Teflon coatings on fiberglass and other fabric with this material but lawyers point out other firms in the region also manufacture them.
Lawyers for the residents said company officials in Merrimack knew the risk they were presenting with continued use of PFOA’s to nearby residents since contamination was found near Saint-Gobain’s plant in Hoosick, N.Y., in 2014.
A federal judge in New York earlier this year issued a decision keeping alive a damages suit in that state.
The lawsuit maintains Saint-Gobain moved some operations from a North Bennington, VT. plant to Merrimack after the state of Vermont imposed stiffer restrictions on PFOA’s in that state.
Late last year, state officials moved to connect 360 Litchfield homes to the Pennichuck public water system with Saint-Gobain paying all the costs for planning and construction.
Merrimack public water customers randomly selected have had their blood tested for PFOA.
The company and state officials continue to explore options for providing clean drinking water to 61 properties in Bedford. Saint-Gobain has paid for design of that connection and construction of the link could be done by next spring.