Suffolk County Water Authority v. Dow Chemical Co.
N.Y.S.2d 819 (2014) (2014)
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Rule of Law:
Market share liability may be applied to manufacturers of a defective, fungible product that causes latent harm, where it is impossible for the plaintiff to identify the specific tortfeasor responsible for the injury.
Facts:
- The Dow Chemical Company (Dow) and R.R. Street & Co. (Street) manufactured and/or distributed the chemical perchloroethylene (PCE).
- PCE is a generic, fungible, and interchangeable chemical product used by various entities, including dry cleaners.
- Over a long period, PCE was released into the ground through its normal use and disposal by third parties like dry cleaners, who were customers of the defendants.
- The released PCE seeped into the groundwater over many years, eventually contaminating the water wells operated by the Suffolk County Water Authority (SCWA).
- Due to the fungible nature of PCE, the commingling of products from different manufacturers, and the long latency period between its release and the discovery of contamination, SCWA cannot identify which specific defendant's product contaminated its wells.
- Other parties, including independent distributors, dry cleaning machine manufacturers, property owners, and dry cleaners, also had some control over the risk of PCE contamination through their handling, use, and disposal of the chemical.
Procedural Posture:
- The Suffolk County Water Authority (SCWA) sued The Dow Chemical Company and R.R. Street & Co. in a New York trial court.
- SCWA later filed an amended complaint asserting a theory of 'market share liability' against the defendants.
- Defendants moved to dismiss the amended complaint for failure to state a cause of action under CPLR 3211 (a) (7).
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Issue:
Does New York's market share liability doctrine apply to claims against manufacturers of perchloroethylene (PCE) for groundwater contamination when the plaintiff cannot identify the specific manufacturer whose product caused the harm?
Opinions:
Majority - Pines, J.
Yes. New York's market share liability doctrine may apply to claims against manufacturers of PCE for groundwater contamination. The court found that the plaintiff, SCWA, stated a cognizable legal theory for relief sufficient to survive a motion to dismiss. The court's reasoning relied heavily on an analogy to Hymowitz v. Eli Lilly & Co., the case that established market share liability for DES. The court determined that, like DES, PCE is alleged to be a defective, generic, and fungible product that causes harm after a long latency period, making it impossible to identify the specific manufacturer. It distinguished this case from Hamilton (handguns) because guns are not fungible products and manufacturers are often identifiable, and from Brenner (lead paint) because lead paint was found not to be a fungible product that remained unchanged from manufacture to ingestion. While acknowledging that third parties like dry cleaners contributed to the risk—a factor that weighed against market share liability in Brenner—the court found it was not dispositive here because the other key Hymowitz factors were strongly alleged.
Analysis:
This decision represents a significant potential expansion of New York's market share liability doctrine beyond the 'singular' context of DES. By allowing the claim to proceed against manufacturers of a common industrial chemical, the court affirmed that the doctrine is based on a set of principles—fungibility, latency, and impossibility of identification—rather than being limited to a specific product. This ruling opens the door for plaintiffs in other complex toxic tort and environmental contamination cases involving generic products to overcome the difficult burden of proving specific causation. It suggests that control over a product's risk by third parties may not be an absolute bar to applying the doctrine, particularly at the pleading stage, if the product is alleged to be inherently defective from the point of manufacture.
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