UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-----------------------------------X

MICHAEL ABBATIELLO, et al., :

: 06 Civ. 0266 (VM)

Plaintiffs, :

:

- against - :

:

MONSANTO COMPANY, SOLUTIA, INC., :

and PHARMACIA CORPORATION, :

:

Defendants. :

-----------------------------------X

ALAN ABELE, et al., :

: 06 Civ. 3461 (VM)

Plaintiffs, :

:

- against - :

:

MONSANTO COMPANY, SOLUTIA, INC., :

and PHARMACIA CORPORATION, :

:

Defendants. :

-----------------------------------X

ARMAND CORLEW, VINCENT RIGGI, :

STEPHEN CERNAK, JR., and RUTH : 07 Civ. 3258 (VM)

DEPAOLO, individually and on :

behalf of a class similarly :

situated, :

Plaintiffs, :

: DECISION AND ORDER

- against - :

:

GENERAL ELECTRIC COMPANY, :

MONSANTO COMPANY, SOLUTIA, INC., :

and PHARMACIA CORPORATION, :

:

Defendants. :

-----------------------------------X

VICTOR MARRERO, United States District Judge.

Two groups of plaintiffs, representing 590 current

employees and 486 former employees (collectively, the

“Employees”) of defendant General Electric Company (“GE”),

brought actions against defendants Monsanto Company, Solutia,

Case 1:07-cv-03258-VM Document 30 Filed 11/02/2007 Page 1 of 42
2

Inc., and Pharmacia Corporation (collectively, “Monsanto”)

claiming negligence, breach of warranty, strict liability,

fraud, negligent infliction of emotional distress, intentional

infliction of emotional distress, assault, battery, abnormally

dangerous activity, medical monitoring, and fear of

contracting illness. 

A third group of plaintiffs, representing owners and

occupiers of land located near a GE facility (the

“Landowners”), brought a class action against GE and Monsanto

claiming negligence, breach of warranty, strict liability,

fraud, negligent infliction of emotional distress, intentional

infliction of emotional distress, abnormally dangerous

activity, medical monitoring, fear of contracting illness,

nuisance, trespass, unjust enrichment, willful and wanton

misconduct, and violations of the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980, 42 U.S.C.

9601 et seq. (“CERCLA”).

The defendants in each action have moved to dismiss

certain of the plaintiffs’ claims pursuant to Federal Rules of

Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) and 9(b) (“Rule

9(b)”). By Order dated September 28, 2007, the Court granted

in part and denied in part the defendants’ motions and

indicated that it would subsequently set forth its findings,

reasoning, and conclusions in a separate decision. For the

Case 1:07-cv-03258-VM Document 30 Filed 11/02/2007 Page 2 of 42
 The amended verified complaints of the current employees (Michael 1

Abbatiello, et al.; No. 06 Civ. 0266; Docket No. 47) and the former

employees (Alan Abele, et al.; No. 06 Civ. 3461; Docket No. 30) are

substantially identical and are collectively referred to as “Employees’

Compl.” The amended verified complaint of the landowners (Armand Corlew,

et al.; No. 07 Civ. 3258; Docket No. 28) is referred to as “Landowners’

Compl.” 

3

reasons stated below, the defendants’ motions are GRANTED IN

PART and DENIED IN PART.

I. BACKGROUND

The following facts are taken from the Employees’ and

Landowners’ amended complaints, which the Court accepts as 1

true for the purpose of ruling on the motions to dismiss. See

Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.

2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.

2001)).

From the 1930s to the mid-1970s, Monsanto sold materials

and products containing polychlorinated biphenyls (“PCBs”) to

GE for use in manufacturing a variety of products including

electric motors, generators, gas turbines, wire and cable,

insulating materials and microwave tubes at an industrial

manufacturing facility, owned and operated by GE, located in

Schenectady, New York (the “GE Plant”). Monsanto designed and

manufactured PCB-containing products in two plants, located in

Alabama and Illinois, and was the sole United States

manufacturer of PCBs. 

The GE Plant opened in 1886 and today maintains a fortyCase 1:07-cv-03258-VM Document 30 Filed 11/02/2007 Page 3 of 42
4

building operation on approximately 640 acres. The central

and eastern portions of the GE Plant are primarily used for

manufacturing electrical products. The western portion of the

GE Plant, which contains three former landfills, two wetlands,

and two streams, was used as a dumping ground for solid and

water waste from the mid-1940s through the early 1980s. 

The Employees and the Landowners allege that Monsanto and

GE were aware, beginning in the 1930s, that PCBs were

hazardous materials. By 1975, the National Institute for

Occupational Safety and Health and the Environmental

Protection Agency reported to Monsanto the health dangers of

PCBs. In the late 1970s, because of the hazardous effect of

PCBs on humans and the environment, the United States

government officially banned PCB production. See 15 U.S.C. §

2605(e)(3)(A). 

In 1987, the New York State Department of Environmental

Conservation (“NYSDEC”) classified the GE Plant as a “Class 2

site,” meaning that it posed a significant threat to the

public health or the environment and action to correct that

hazard was required. In 1995, GE entered into an order on

consent (the “Consent Order”) to complete a site-wide

environmental investigation of the GE Plant. In accordance

with the Consent Order, GE completed a Remedial Investigation

(“RI”) and Feasibility Study of the GE Plant. Testing

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occurred from 1995 through 2003, and PCB concentrations

exceeding the NYSDEC recommended safe screening levels were

found in surface soil, subsoil, shallow groundwater, seeps,

wetland sediment, and biota (living animal) samples around the

GE Plant.

II. DISCUSSION

A. STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Rule

12(b)(6), a court construes the complaint broadly, “accepting

all factual allegations in the complaint as true, and drawing

all reasonable inferences in the plaintiff’s favor.” Chambers

v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

However, mere “conclusions of law or unwarranted deductions of

fact” need not be accepted as true. First Nationwide Bank v.

Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994) (quotation

marks and citation omitted). A court should not dismiss a

complaint for failure to state a claim if the factual

allegations sufficiently “raise a right to relief above the

speculative level.” Bell Atl. Corp. v. Twombly, 127 S. Ct.

1955, 1965 (2007). 

B. STATUTE OF LIMITATIONS

GE moves to dismiss the Landowners’ negligence, strict

liability, negligent infliction of emotional distress,

intentional infliction of emotional distress, abnormally

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dangerous activity, nuisance, and trespass claims on the

ground that they are barred by the statute of limitations. 

The limitations period for “actions to recover damages

for personal injury or property damage caused by the latent

effects of exposure to a substance or combination of

substances” is governed by section 214-c(2)of the New York

Civil Practice Law and Rules (“§ 214-c(2)”). See Jensen v.

Gen. Elec. Co., 623 N.E.2d 547, 555 (N.Y. 1993). Section

214-c(2) provides for a three-year limitations period, which

is “computed from the date of discovery of the injury by the

plaintiff or from the date when through the exercise of

reasonable diligence such injury should have been discovered

by the plaintiff, whichever is earlier.” N.Y. C.P.L.R. §

214-c(2); see also MRI Broadway Rental, Inc. v. U.S. Mineral

Prods. Co., 704 N.E.2d 550, 554 (N.Y. 1998) (“[D]iscovery

occurs when, based upon an objective level of awareness of the

dangers and consequences of the particular substance, the

injured party discovers the primary condition on which the

claim is based.”) (citation and quotation marks omitted).

The statute of limitations is an affirmative defense, and

therefore “the defendant bears the burden of establishing by

prima facie proof that the limitations period has expired

since the plaintiff’s claims accrued.” Overall v. Estate of

Klotz, 52 F.3d 398, 403 (2d Cir. 1995) (citation omitted); see

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also Harris v. City of New York, 186 F.3d 243, 250 (2d Cir.

1999) (“[D]ismissal is appropriate only if a complaint clearly

shows the claim is out of time.”). 

GE has not met its burden here. GE asserts, in a

conclusory manner, that the Landowners should have discovered

their injuries, at the latest, in 2003 when the RI for the GE

Plant was complete. According to the Landowners, the purpose

of the RI was to “collect and evaluate data regarding the

nature and extent of contamination” at the GE Plant, not the

surrounding properties. (Landowners’ Compl. ¶ 38.)

Additionally, the Landowners assert that GE concealed from

them and the public that the contamination had spread to

surrounding areas. (See id. ¶ 41.) In their opposition

papers, the Landowners allege that they did not discover, nor

should they have discovered through the exercise of reasonable

diligence, the injuries to their person or property until on

or about April 20, 2006 when soil samples collected from their

property were tested and on or about March 14, 2007 when

individual plaintiffs’ blood samples were tested. Therefore,

GE has not demonstrated that the Landowners knew or should

have known, through the exercise of reasonable diligence, of

their injuries before their land was tested in April, 2006. 

“‘Where it does not conclusively appear that a plaintiff

had knowledge of facts from which the injury could reasonably

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be inferred, the complaint should not be dismissed on motion

and the question should be left to the trier of fact.’” Bano

v. Union Carbide Corp., 361 F.3d 696, 710 (2d Cir. 2004)

(quoting Glod v. Morrill Press Div. of Engraph, Inc., 564

N.Y.S.2d 905, 908 (App. Div. 4th Dep’t 1990)). Accordingly,

GE’s motion to dismiss on the basis of the statute of

limitations is denied. 

C. ASSAULT AND BATTERY

The Employees allege that Monsanto committed assault and

battery by releasing and dispersing toxic substances and

pollutants into the Employees’ work environment and allowing

those substances to remain there. Monsanto moves to dismiss

for failure to state a claim. Because the Employees do not

oppose the motion, the Court deems this claim abandoned, and

Monsanto’s motion to dismiss the Employees’ assault and

battery claims is granted on that basis. See In re Refco

Capital Mkts., Ltd. Brokerage Customer Sec. Litig., No. 06

Civ. 643, 2007 WL 2694469, at *6 (S.D.N.Y. Sept. 13, 2007);

Shady Records, Inc. v. Source Enters., 371 F. Supp. 2d 394,

396 (S.D.N.Y. 2005); Anti-Monopoly, Inc. v. Hasbro, Inc., 958

F. Supp. 895, 907 n.11 (S.D.N.Y. 1997).

D. BREACH OF WARRANTY

The Employees and Landowners allege that Monsanto

breached an implied and express warranty that its PCBCase 1:07-cv-03258-VM Document 30 Filed 11/02/2007 Page 8 of 42
9

containing products were fit for their intended use and of

merchantable quality because they contained harmful, toxic,

poisonous and carcinogenic levels of PCBs. The Landowners

make the same allegation against GE. Monsanto and GE each

moves to dismiss this claim on the ground that it is barred by

the statute of limitations, and GE moves to dismiss on the

additional ground that it is not a “seller” within the meaning

of the New York Uniform Commercial Code (the “N.Y. U.C.C.”).

The Employees do not oppose Monsanto’s motion to dismiss, but

the Landowners do oppose Monsanto’s and GE’s motions to

dismiss.

A breach of warranty claim involves the sale of goods and

is governed by the N.Y. U.C.C. See Long Island Lighting Co.

v. Imo Indus. Inc., 6 F.3d 876, 888 (2d Cir. 1993). “An

action for breach of any contract for sale must be commenced

within four years after the cause of action accrued.” N.Y.

U.C.C. § 2-725(1). A cause of action accrues “when the breach

occurs, regardless of the aggrieved party’s lack of knowledge

of the breach.” N.Y. U.C.C. § 2-725(2). “A breach of

warranty occurs when tender of the delivery is made, except

that where a warranty explicitly extends to future performance

of the goods and discovery of the breach must await the time

of such performance, the cause of action accrues when the

breach is or should have been discovered.” Id. 

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In the instant case, the four-year limitations period has

run. Monsanto stopped selling PCB-containing products to GE

when the government banned PCBs in the United States in the

late 1970s. If any warranty was in fact breached, such a

breach would have occurred when the PCB-containing products

were delivered, i.e., sometime in the 1970s. Accordingly,

Monsanto’s and GE’s motions to dismiss are granted with

respect to the Employees’ and Landowners’ breach of warranty

claims. Because this claim is barred by the statute of

limitations, the Court does not address the merits of the

additional defense asserted by GE.

E. ABNORMALLY DANGEROUS ACTIVITY

One who carries on an ultrahazardous or abnormally

dangerous activity is strictly liable for the harm inflicted

by the activity. See Doundoulakis v. Town of Hempstead, 368

N.E.2d 24, 27 (N.Y. 1977). Imposing strict liability upon

entities which undertake ultrahazardous or abnormally

dangerous activities is justified by policy considerations

determining that “those who engage in activity of sufficiently

high risk of harm to others, especially where there are

reasonable even if more costly alternatives, should bear the

cost of harm caused the innocent.” Id. (citing Restatement

(Second) of Torts § 519 (1977)). 

“It is for the court to decide whether an activity of a

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landowner is abnormally dangerous and warrants imposition of

strict liability.” Mayore Estates, LLC v. Port Auth. of N.Y.

& N.J., No. 02 Civ. 7198, 2003 WL 22232918, at *2 (S.D.N.Y.

Sept. 26, 2003). Whether a particular activity qualifies as

“abnormally dangerous” depends on a number of factors.

Doundoulakis, 368 N.E.2d at 27. In particular, New York

courts have looked to the six factors listed in Section 520 of

the Restatement (Second) of Torts (“Restatement § 520”): “(a)

existence of a high degree of risk of some harm to the person,

land or chattels of others; (b) likelihood that the harm that

results from it will be great; (c) inability to eliminate the

risk by the exercise of reasonable care; (d) extent to which

the activity is not a matter of common usage; (e)

inappropriateness of the activity to the place where it is

carried on; and (f) extent to which its value to the community

is outweighed by its dangerous attributes.” Restatement

(Second) of Torts § 520 (1977); see Doundoulakis, 368 N.E.2d

at 27; Searle v. Suburban Propane Div. of Quantum Chem. Corp.,

700 N.Y.S.2d 588, 591 (App. Div. 3rd Dep’t 2000).

1. Employees

The Employees allege that Monsanto engaged in abnormally

dangerous activities by “manufacturing, producing, creating,

using, releasing and dispersing toxic substances and

pollutants into plaintiff’s work environment.” (Employees’

Case 1:07-cv-03258-VM Document 30 Filed 11/02/2007 Page 11 of 42
Manufacturing certain products may constitute an abnormally dangerous 2 

activity. The Restatement notes, for example, that the manufacture of

explosive materials may be abnormally dangerous under certain

circumstances. See Restatement (Second) of Torts § 520 cmt. h (1977).

There is clearly a difference between manufacturing a dangerous

instrumentality, such as a machine gun, where the manufacturing process

itself is presumably not abnormally dangerous, and manufacturing a

dangerous material, such as plutonium, where both the manufacturing

process and the end product may be abnormally dangerous.

12

Compl. ¶ 115.) 

Monsanto, relying primarily on City of Bloomington v.

Westinghouse Elec. Corp., 891 F.2d 611 (7th Cir. 1989), moves

to dismiss this claim on the ground that the manufacture and

sale of PCBs are not ultrahazardous activities. In that case,

the City of Bloomington sued Monsanto for damages resulting

from the contamination of its sewer system, a sewage treatment

plant, and a landfill arising from the use of PCBs in

Westinghouse’s manufacturing operations. See id. at 612. The

court held that, under Indiana law, liability for an

abnormally dangerous activity should not be imposed for

“merely manufacturing dangerous products,” but only for the

use of such a product. Id. at 616. Because the court found

that the contamination was caused by Westinghouse’s use of

Monsanto’s dangerous product, it was “unwilling to extend the

doctrine of strict liability for an abnormally dangerous

activity to the party whose activity did not cause the

injury.” Id. Indeed, courts in the Second Circuit have

reached similar conclusions. See, e.g., Hamilton v. Accu-tek, 2

935 F. Supp. 1307, 1324 (E.D.N.Y. 1996) (manufacture of guns

Case 1:07-cv-03258-VM Document 30 Filed 11/02/2007 Page 12 of 42
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not an abnormally dangerous activity).

City of Bloomington is readily distinguishable from the

present case, however, for two reasons. First, in that case,

the court found that “the harm to the City’s sewage and

landfill was not caused by any abnormally dangerous activity

of Monsanto but by [Westinghouse’s] failure to safeguard its

waste.” 891 F.2d at 615. The court reached that conclusion

in large part because the record before it demonstrated that

“when alerted to the risks associated with PCBs, Monsanto made

every effort to have Westinghouse dispose of the chemicals

safely,” and that therefore “[t]he risks associated with the

disposal of PCBs could have been limited by Westinghouse’s

exercise of reasonable care.” Id. at 614-16. 

In contrast, the Employees allege that Monsanto actively

concealed the dangers of PCBs from GE. The manufacture and

sale of a hazardous material, with no warning as to the

dangers associated with it, may constitute an abnormally

dangerous activity. Cf. In re Methyl Tertiary Butyl Ether

(“MTBE”) Prods. Liab. Litig., 175 F. Supp. 2d 593, 629

(S.D.N.Y. 2001) (“MTBE I”) (denying motion to dismiss nuisance

claim against petroleum companies for contamination of wells,

where plaintiffs alleged that defendants had “knowledge of the

dangers MTBE poses to groundwater” and “failed to warn the

downstream handlers, retailers, gasoline purchasers,

government officials and well owners”).

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Second, the Employees based their claim on more than the

mere manufacture and sale of PCBs. Their claim includes

“releasing and dispersing” the PCBs into their work

environment, the GE Plant. Even where the manufacture or sale

of a hazardous material does not constitute an abnormally

dangerous activity, the manner in which it is transported,

stored, used, or disposed of may meet the standard. See,

e.g., New York v. Shore Realty Corp., 759 F.2d 1032, 1052 (2d

Cir. 1985) (holding that “allowing corroding tanks to hold

hundreds of thousands of gallons of hazardous waste

constitutes abnormally dangerous activity”). 

The question for the Court, therefore, is whether the

manufacture, sale, and release of PCBs into the Employees’

workplace, with no warning as to their toxic properties, was

an abnormally dangerous activity. Reviewing the factors

enumerated in Restatement § 520, only factors (b) and (d) are

clearly present. Accepting the allegations in the Employees’

complaint as true compels the Court to conclude that PCBs are

highly toxic substances, with the potential to cause “cancer,

liver disease, suppression of the immune system, imbalance of

hormonal systems, reduction in IQ, thyroid dysfunction, heart

dysfunction, hypertension, diabetes, nervous system disorders,

sex hormone imbalances, adverse skin conditions and other

maladies in humans.” (Employees’ Compl. ¶ 7.) Additionally,

the Employees allege that “Monsanto was the sole United States

Case 1:07-cv-03258-VM Document 30 Filed 11/02/2007 Page 14 of 42
15

manufacturer of PCBs.” (Id. ¶ 5.) Thus, the manufacture,

sale, and delivery of PCBs was “not a matter of common usage.”

The Court does not have sufficient evidence as to the other

factors listed in Restatement § 520, and it is therefore

unable, at this stage of the proceedings, to determine whether

Monsanto’s actions constitute an abnormally dangerous

activity. Accordingly, the Court must deny Monsanto’s motion

to dismiss this claim at this time. 

2. Landowners

The Landowners allege that Monsanto and GE engaged in

abnormally dangerous activities by “manufacturing, producing,

creating, using, releasing and dispersing PCBs onto

plaintiffs’ properties and by allowing those PCBs to remain in

the environment to date and continuing.” (Landowners’ Compl.

¶¶ 100, 186.) Monsanto moves to dismiss on essentially the

same grounds described above with respect to the Employees’

claim. For the reasons stated above, the Court denies

Monsanto’s motion.

F. FRAUD

In order to state a claim for fraud under New York law,

a plaintiff is required to allege the following five elements:

“(1) a material misrepresentation or omission of fact (2) made

by defendant with knowledge of its falsity (3) and intent to

defraud; (4) reasonable reliance on the part of the plaintiff;

and (5) resulting damage to the plaintiff.” Crigger v.

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Fahnestock & Co., 443 F.3d 230, 234 (2d Cir. 2006); see also

Cohen v. Houseconnect Realty Corp., 734 N.Y.S.2d 205, 206

(App. Div. 2d Dep’t 2001).

Rule 9(b) requires that fraud claims be pleaded with

particularity. Rule 9(b) states: “In all averments of fraud

or mistake, the circumstances constituting fraud or mistake

shall be stated with particularity.” Thus, conclusory

allegations of fraud may be dismissed under Rule 9(b). See

Shemtob v. Shearson, Hammill & Co., 448 F.2d 442, 444 (2d Cir.

1971). For affirmative misrepresentations, a complaint must

“(1) specify the statements that the plaintiff contends were

fraudulent, (2) identify the speaker, (3) state where and when

the statements were made, and (4) explain why the statements

were fraudulent.” Mills, 12 F.3d at 1175. For claims of

fraudulent concealment, the complaint must specify: “(1) what

the omissions were; (2) the person responsible for the failure

to disclose; (3) the context of the omissions and the manner

in which they misled the plaintiff, and (4) what defendant

obtained through the fraud.” Malmsteen v. Berdon, LLP, 477 F.

Supp. 2d 655, 664-65 (S.D.N.Y. 2007) (citing Odyssey Re

(London) Ltd. v. Stirling Cooke Brown Holdings Ltd., 85 F.

Supp. 2d 282, 293 (S.D.N.Y. 2000)). 

Additionally, “a concealment of facts supports a cause of

action for fraud only if the non-disclosing party has a duty

to disclose.” Remington Rand Corp. v. Amsterdam-Rotterdam

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Bank, N.V., 68 F.3d 1478, 1483 (2d Cir. 1995). Thus, a party

bringing a fraud claim based on concealment must allege the

existence of a duty to disclose. “Such a duty ordinarily

arises where the parties are in a fiduciary or other

relationship signifying a heightened level of trust.” Id.

Additionally, a party to a business transaction may have a

duty to disclose, even in the absence of a fiduciary

relationship, if the party (1) “has made a partial or

ambiguous statement, on the theory that once a party has

undertaken to mention a relevant fact to the other party it

cannot give only half of the truth,” or (2) “possesses

superior knowledge, not readily available to the other, and

knows that the other is acting on the basis of mistaken

knowledge.” Brass v. Am. Film Tech., Inc., 987 F.2d 142, 150

(2d Cir. 1993) (quotations and citations omitted). 

1. Employees

The Employees allege that Monsanto knew that exposure to

PCBs could cause serious illnesses but concealed that fact in

order to maintain sales of PCBs and to avoid liability and

other potential adverse consequences of disclosure.

Specifically, the Employees allege that Monsanto failed to

inform certain corporate customers, including GE, and the

public of the dangers of PCBs. However, the Employees fail to

allege that Monsanto had a duty to disclose this information

to them. Nor is the Court aware of any such duty.

Case 1:07-cv-03258-VM Document 30 Filed 11/02/2007 Page 17 of 42
 The Employees’ complaint alleges: “The general public, General Electric 3

Company and the plaintiffs herein relied on the aforementioned conduct,

misrepresentations and concealment of Monsanto to their detriment by

continuing to buy and use said products and materials and by improperly

disposing of said products and materials after their use thereof.”

(Employees’ Compl. ¶ 92.) Because GE, not the Employees, is alleged to

have conducted the activities described -- buying, using, and disposing of

PCB-containing materials -- this allegation must be interpreted as

alleging reliance only by GE. With respect to reliance by the Employees,

the allegation is conclusory and unsupported by any factual assertion.

See Twombly, 127 S. Ct. at 1964-65 (A complaint must provide “more than

labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.”).

18

Additionally, insofar as the Employees’ fraud claim is based

on affirmative misrepresentations, the complaint does not

satisfy the requirements of Rule 9(b) of identifying specific

misrepresentations made by Monsanto to the Employees.

To the extent that the Employees base their fraud claim

on misrepresentations or omissions made by Monsanto to GE, the

claim fails because New York law requires that the plaintiffs

themselves be misled by the alleged misrepresentation or

omission. See Cement & Concrete Workers Dist. Council Welfare 3

Fund, Pension Fund, Legal Servs. Fund & Annuity Fund v. Lollo,

148 F.3d 194, 196 (2d Cir. 1998) (“[A] plaintiff does not

establish the reliance element of fraud for purposes of ...

New York law by showing only that a third party relied on a

defendant’s false statements.”); Kelly v. L.L. Cool J., 145

F.R.D. 32, 38 (S.D.N.Y. 1992) (“A plaintiff has failed to

state a claim for fraud when he alleges merely that the

misrepresentation in question was made to or relied on by a

third party.”). Thus, even if Monsanto breached a duty to GE

Case 1:07-cv-03258-VM Document 30 Filed 11/02/2007 Page 18 of 42
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by concealing the dangers of PCBs, that concealment would not

provide a basis for a fraud claim by the Employees.

Accordingly, the Employees’ fraud claim against Monsanto

must be dismissed pursuant to Rule 12(b)(6) and Rule 9(b).

2. Landowners

The Landowners bring claims of fraudulent concealment

against both Monsanto and GE, alleging that these parties were

aware of the dangers of PCBs and concealed this information

from the public. These claims fail, however, for the same

reasons discussed above with respect to the Employees’ fraud

claim. First, the Landowners do not allege that either

Monsanto or GE had a duty to disclose that would support a

fraudulent concealment claim. Second, the complaint does not

meet the pleading requirements of Rule 9(b). Third, the law

requires that the Landowners themselves be misled by the

alleged misrepresentation or omission. Accordingly, the

Landowners’ fraud claim against Monsanto and GE must be

dismissed pursuant to Rule 12(b)(6) and Rule 9(b).

F. EMOTIONAL DISTRESS

The Landowners allege that Monsanto and GE negligently

and intentionally inflicted emotional distress on them by

manufacturing, creating, producing, and using PCBs and by

failing to advise them of the dangers associated with exposure

to PCBs. Monsanto and GE each moves to dismiss for failure to

state a claim.

Case 1:07-cv-03258-VM Document 30 Filed 11/02/2007 Page 19 of 42
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1. Negligent Infliction of Emotional Distress

“Negligent infliction of emotional distress has its roots

in the acknowledgment by the courts of the need to provide

relief in those circumstances where traditional theories of

recovery do not.” Lee v. McCue, 410 F. Supp. 2d 221, 226-27

(S.D.N.Y. 2006). “The New York State Court of Appeals has

permitted plaintiffs to recover in cases of purely emotional

injury in extremely limited circumstances ... in which (1) a

bystander who was in the zone of danger suffers emotional

trauma as a result of their observations or (2) the defendant

breaches a direct duty to plaintiff which results in emotional

injury to the plaintiff.” In re Air Crash Disaster at Cove

Neck, Long Island, N.Y. on Jan. 25, 1990, 885 F. Supp. 434,

438 (E.D.N.Y. 1995) (citing Lancellotti v. Howard, 547

N.Y.S.2d 654, 655 (App. Div. 2d Dep’t 1989)); see also Lee,

410 F. Supp. 2d at 227. The zone-of-danger rule “is premised

on the traditional negligence concept that by unreasonably

endangering the plaintiff’s physical safety the defendant has

breached a duty owed to him or her for which he or she should

recover all damages sustained including those occasioned by

witnessing the suffering of an immediate family member who is

also injured by the defendant’s conduct.” Bovsun v. Sanper,

461 N.E.2d 843, 847 (N.Y. 1984). 

In the instant case, the Landowners do not allege that

they were in the zone of danger or that Monsanto breached a

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21

duty owed to them; therefore, they do not allege any set of

facts that “raise a right to relief.” Twombly, 127 S.Ct. at

1964-65. Accordingly, Monsanto’s and GE’s motions to dismiss

are granted with respect to the Landowners’ negligent

infliction of emotional distress claim. 

2. Intentional Infliction of Emotional Distress

To state a claim for intentional infliction of emotional

distress, a plaintiff must plead “(i) extreme and outrageous

conduct; (ii) intent to cause, or disregard of a substantial

probability of causing, severe emotional distress; (iii) a

causal connection between the conduct and injury; and (iv)

severe emotional distress.” Howell v. New York Post Co., 612

N.E.2d 699, 702 (N.Y. 1993). “Liability has been found only

where the conduct has been so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Wiener v.

Unumprovident Corp., 202 F. Supp. 2d 116, 122 (S.D.N.Y. 2002)

(citing Murphy v. Am. Home Prods. Corp., 448 N.E.2d 86, 90

(N.Y. 1983)). “Further, ‘the emotional distress suffered by

the plaintiff must be so severe that no reasonable man could

be expected to endure it.’” Id. (quoting Restatement (Second)

of Torts § 46 cmt. j (1977)). Under New York law, “[o]ne who

by extreme and outrageous conduct intentionally or recklessly

causes severe emotional distress to another is subject to

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liability for such emotional distress.” Freihofer v. Hearst

Corp., 480 N.E.2d 349, 355 (N.Y. 1985) (quoting Restatement

(Second) of Torts § 46 (1977)).

The Landowners allege that Monsanto and GE knowingly

subjected them and their properties to exposure to PCBs while

concealing the hazards associated with such exposure.

Monsanto and GE argue, unpersuasively, that such conduct does

not rise to the level of “extreme or outrageous.” The Court

finds that an allegation of knowingly subjecting individuals

to exposure to a highly toxic substance, while purposefully

concealing from those so exposed the serious injuries that

might result from such exposure, and in reckless disregard of

these risks, may constitute “extreme and outrageous” conduct.

See German v. Fed. Home Loan Mortgage Corp., 885 F. Supp. 537,

571 (S.D.N.Y. 1995) (denying motion to dismiss where landlords

knowingly exposed tenants to lead paint, “a highly toxic

substance to children,” thereby putting them at risk for

physical and mental injuries). Accordingly, Monsanto’s and

GE’s motions to dismiss the Landowners’ intentional infliction

of emotional distress claims are denied. 

H. MEDICAL MONITORING AND FEAR OF CONTRACTING ILLNESS

The Landowners bring claims for medical monitoring and

fear of contracting illness. Monsanto and GE each moves to

dismiss, arguing that New York does not recognize an

independent cause of action for medical monitoring or fear of

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23

contracting illness. 

1. Medical monitoring

“Medical monitoring is one of a growing number of

non-traditional torts that have developed in the common law to

compensate plaintiffs who have been exposed to various toxic

substances.” In re Paoli R.R. Yard PCB Litig., 916 F.2d 829,

849 (3d Cir. 1990) (“Paoli I”). The injuries caused by

exposure to toxic substances may take years to manifest

themselves physically, and during this latency period,

plaintiffs are burdened with the expense of regular medical

testing. This medical monitoring is intended to detect the

onset of latent injuries or diseases and to facilitate early

diagnosis and treatment. However, plaintiffs may be unable to

recover under traditional tort law, which generally requires

a presently existing physical injury. Recognizing this

difficulty, a number of states have allowed plaintiffs to

bring claims for the costs of periodic medical monitoring. Of

the states that recognize a claim for medical monitoring, some

consider it to be an independent cause of action that does not

require a separate compensable injury, while others treat it

as a form of remedy for an existing tort, such as negligence.

Compare Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424, 429

(W.Va. 1999) (independent cause of action), with Hinton ex

rel. Hinton v. Monsanto Co., 813 So.2d 827 (Ala. 2001) (remedy

available only with present physical injury).

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The New York Court of Appeals has not specifically

addressed the issue of medical monitoring claims, but several

lower courts have held that medical monitoring expenses can

constitute a form of damages, even where the present injury is

insignificant.

In Askey v. Occidental Chem. Corp., 477 N.Y.S.2d 242

(App. Div. 4th Dep’t 1984), the Appellate Division addressed

“the novel issue” of “whether those persons who have an

increased risk of cancer, genetic damage and other illnesses

by reason of their exposure to the toxic chemicals emanating

from the landfill, but whose physical injuries are not

evident, should be certified as a class for the purpose of

determining their right to recover the costs of future medical

monitoring services to diagnose warning signs of the

development of disease.” Id. at 244. The court determined

that “there is a basis in law to sustain a claim for medical

monitoring as an element of consequential damages.” Id. at

256. It held that “a defendant is liable for ‘reasonably

anticipated’ consequential damages which may flow later from

that invasion although the invasion itself is ‘an injury too

slight to be noticed at the time it is inflicted.’” Id. at 247

(quoting Schmidt v. Merchants Despatch Transp. Co., 200 N.E.

824, 827 (1936)). 

Since Askey, a number of other New York state courts have

recognized claims for medical monitoring. See, e.g., Allen v.

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Gen. Elec. Co., 821 N.Y.S.2d 692 (App. Div. 4th Dep’t 2006);

Abusio v. Consol. Edison Co. of N.Y., 656 N.Y.S.2d 371 (App.

Div. 2d Dep’t 1997); Gerardi v. Nuclear Util. Servs., Inc.,

566 N.Y.S.2d 1002 (N.Y. Sup. Ct. 1991). None of these

decisions, however, explicitly recognizes medical monitoring

as a separate cause of action, independent of any present

physical injury.

Federal courts considering the issue have reached

differing conclusions. Compare In re World Trade Center

Disaster Site Litig., No. 21 MC 100, 2006 WL 3627760, at *3

(S.D.N.Y. Dec. 12, 2006) (Medical monitoring and fear of

cancer “may perhaps be considered as equitable remedies, if

causes of action are otherwise proved and if the remedies are

held to be appropriate and in accordance with the law. They

do not constitute independent causes of action.”), with

Beckley v. United States, No. 92 Civ. 8137, 1995 WL 590658, at

*4 (S.D.N.Y. Oct. 5, 1995) (“In New York, courts recognize a

separate cause of action, with a relaxed standard of proof,

for medical monitoring expenses due to exposure to toxic

chemicals when the plaintiff cannot show with reasonable

certainty that he will contract a disease as a result of the

exposure.”), and Gibbs v. E.I. DuPont De Nemours & Co., 876 F.

Supp. 475, 479 (W.D.N.Y. 1995) (“Although the New York courts

have not conclusively ruled on the availability of a claim for

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26

medical monitoring in the absence of present injury, I believe

that Askey accurately represents a growing national acceptance

of a such a claim, and would be embraced by the New York Court

of Appeals.”).

In Beckley, the court offered the following rationale in

support of recognizing an independent cause of action for

medical monitoring:

In cases involving a present injury combined with a

relatively remote possibility of a future, more serious

disease, adherence to a “single cause of action” theory

would lead to unjust results in cases where the plaintiff

does eventually contract the disease: if the plaintiff

sues on his present injury, he will be unable to recover

for the future disease due to his low risk of eventually

contracting it; yet, if the plaintiff waits to bring suit

until he contracts the disease, his suit could be barred

by the statute of limitations. To remedy this injustice,

many courts recognize separate causes of action in the

case of a present injury combined with a low probability

of a future, more serious disease. 

1995 WL 590658, at *4. 

This reasoning has clear application to the present case.

If no separate cause of action for medical monitoring were

available, the Landowners, having discovered the PCB

contamination, would face a dilemma: either (1) bring a

lawsuit, and be denied recovery for the increased risk of

contracting serious illnesses; or (2) bear the financial

burden of medical monitoring and risk being barred by the

statute of limitations from suing later in the unfortunate

event that a serious illness were contracted. The Court is

not persuaded that the New York Court of Appeals would endorse

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such a result.

On this point, it is instructive to examine the treatment

by the New York state courts of a closely analogous situation,

that where a person contracts a disease as a result of

exposure to a toxic substance, and later contracts a second,

separate disease. For example, a person exposed to asbestos

may contract asbestosis and, years later, may also develop a

particularly virulent form of cancer known as mesothelioma.

In response, most state courts have developed what the Supreme

Court has referred to as the “separate disease rule,”

according to which “the statute of limitations runs separately

for each asbestos-related disease.” Norfolk & W. Ry. Co. v.

Ayers, 538 U.S. 135, 152 (2003). The Supreme Court explained:

The rule evolved as a response to the special problem

posed by latent-disease cases. Under the single-action

rule, a plaintiff who recovered for asbestosis would then

be precluded from bringing suit for later developed

mesothelioma. Allowing separate complaints for each

disease, courts determined, properly balanced a

defendant’s interest in repose and a plaintiff’s interest

in recovering adequate compensation for negligently

inflicted injuries.

Id. at 153 n.12. 

New York courts have recognized such a rule. “Where the

statute of limitations has run on one exposure-related medical

problem, a later exposure-related medical problem that is

‘separate and distinct’ is still actionable under New York’s

two-injury rule.” Braune v. Abbott Labs., 895 F. Supp. 530,

555 (E.D.N.Y. 1995) (citing Fusaro v. Porter-Hayden Co., 548

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N.Y.S.2d 856, 858-59 (N.Y. Sup. Ct. 1989), aff’d, 565 N.Y.S.2d

357 (App. Div. 1st Dep’t 1991)). “Under the rule, diseases

that share a common cause may nonetheless be held separate and

distinct where their biological manifestations are different

and where the presence of one is not necessarily a predicate

for the other’s development.” Id. at 555-56. 

The Court finds no basis for concluding that the New York

Court of Appeals would not embrace a similar rule in cases

where the present damage is not a physical injury but the

financial burden associated with periodic medical monitoring.

Accordingly, the Court agrees with the decisions of the courts

in Beckley and Gibbs and concludes that, in cases involving

exposure to toxic materials, the New York Court of Appeals

would recognize an independent cause of action for medical

monitoring.

In Gibbs, the court adopted the elements of the medical

monitoring claim as set forth by the Third Circuit in Paoli I.

Subsequently, the Supreme Court of Pennsylvania adopted the

Paoli I elements with some modification. Redland Soccer Club,

Inc. v. Dep’t of the Army, 696 A.2d 137, 145-46 (Pa. 1997).

The Redland court held that to prevail on a common law claim

for medical monitoring, a plaintiff must prove: “(1) exposure

greater than normal background levels; (2) to a proven

hazardous substance; (3) caused by the defendant’s negligence;

(4) as a proximate result of the exposure, plaintiff has a

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significantly increased risk of contracting a serious latent

disease; (5) a monitoring procedure exists that makes the

early detection of the disease possible; (6) the prescribed

monitoring regime is different from that normally recommended

in the absence of the exposure; and (7) the prescribed

monitoring regime is reasonably necessary according to

contemporary scientific principles.” Id. These elements

incorporate the Appellate Division’s holding in Askey, where

the court stated:

The future expense of medical monitoring, could be a

recoverable consequential damage provided that plaintiffs

can establish with a reasonable degree of medical

certainty that such expenditures are “reasonably

anticipated” to be incurred by reason of their exposure.

Askey 477 N.Y.S.2d at 247 (quoted in Paoli I, 916 F.2d at

851). 

The third element set forth above specifically references

negligence, presumably because Paoli I involved an allegation

of negligent conduct. There is no reason why a cause of

action for medical monitoring could not be grounded on other

types of tortious conduct, such as acts that are intentional

or those for which a defendant is held strictly liable. In

the present case, a cause of action for medical monitoring may

be based on negligence, strict liability, abnormally dangerous

activities, nuisance, or trespass. Accordingly, the third

element must be modified to reflect this broader scope. 

The Court therefore predicts that the New York Court of

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Appeals would recognize a cause of action for medical

monitoring, established by proving: (1) exposure greater than

normal background levels; (2) to a proven hazardous substance;

(3) caused by the defendant’s tortious conduct; (4) as a

proximate result of the exposure, plaintiff has a

significantly increased risk of contracting a serious latent

disease; (5) a monitoring procedure exists that makes the

early detection of the disease possible; (6) the prescribed

monitoring regime is different from that normally recommended

in the absence of the exposure; and (7) the prescribed

monitoring regime is reasonably necessary according to

contemporary scientific principles. 

In this case, the Landowners allege that they were

exposed to PCBs because of Monsanto’s and GE’s tortious

conduct, resulting in elevated levels of PCBs in their blood

and body organs, which puts them at an increased risk of

developing PCB-related cancers and diseases and makes regular

medical monitoring necessary. Drawing all reasonable

inferences in favor of the plaintiffs, the Court finds that

the Landowners have adequately alleged the elements set forth

above. Accordingly, Monsanto’s and GE’s motions to dismiss

are denied with respect to the Landowners’ medical monitoring

claim.

2. Fear of Contracting Illness

The analysis above also applies to claims for fear of

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contracting illness following exposure to a toxic substance.

Like the financial burden of medical monitoring, fear of

contracting illness is a present damage. As it does not

depend on whether an illness is actually contracted, it is not

speculative. Rather, it compensates a victim for the

presently-existing emotional distress that accompanies the

knowledge of an increased risk of contracting a serious

illness. The Court therefore predicts that, in cases of

exposure to toxic substances, the New York Court of Appeals

would recognize a separate cause of action for fear of

contracting illness.

In order to guarantee the trustworthiness of such a

claim, a plaintiff is required to establish “both that he was

in fact expose to the disease-causing agent and that there is

a ‘rational’ basis for his fear of contracting the disease.”

Wolff v. A-One Oil, Inc., 627 N.Y.S.2d 788, 789 (App. Div. 2d

Dep’t 1995); see also Dangler v. Town of Whitestown, 672

N.Y.S.2d 188, 190 (App. Div. 4th Dep’t 1998). “This ‘rational

basis’ has been construed to mean the clinically demonstrable

presence of PCBs in the plaintiff’s body, or some indication

of PCB-induced disease i.e., some physical manifestation of

PCB contamination.” Abusio, 656 N.Y.S.2d at 372. In Patton

v. General Signal Corp., 984 F. Supp. 666 (W.D.N.Y. 1997), the

court explained why the burden of proof is higher for a fear

of contracting illness claim than for a medical monitoring

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claim:

Exposure to a toxic substance might in some instances be

enough to make medical monitoring advisable, but not

enough to provide a rational basis for a fear that is

severe enough to cause the plaintiff compensable

emotional distress. Moreover, there could be cases in

which the plaintiff cannot prove that a certain substance

is present in his body, but could nevertheless present

expert medical testimony that the plaintiff’s exposure to

that substance warrants future medical monitoring.

Id. at 674.

In this case, the Landowners have alleged that they have

elevated levels of PCBs in their bodies, and that they have

reasonably developed the fear of sustaining serious illnesses

due to the latent effects of their exposure to PCBs. These

factual allegations are sufficient to support a claim for fear

of contracting illness. Accordingly, Monsanto’s and GE’s

motions to dismiss are denied with respect to this claim.

I. NUISANCE

The Landowners contend that Monsanto’s and GE’s conduct

was sufficient to create a private nuisance. Monsanto and GE

each moves to dismiss for failure to state a claim. 

“A private nuisance threatens one person or a relatively

few, an essential feature being an interference with the use

or enjoyment of land.” Copart Indus., Inc. v. Consol. Edison

Co. of N.Y., 362 N.E.2d 968, 971 (N.Y. 1977) (citations

omitted). To state a claim for private nuisance, a plaintiff

must show that the conduct at issue “is a legal cause of the

invasion of the interest in the private use and enjoyment of

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land and such invasion is (1) intentional and unreasonable,

(2) negligent or reckless, or (3) actionable under the rules

governing liability for abnormally dangerous conditions or

activities.” Id.; see also Scribner v. Summers, 84 F.3d 554,

559 (2d Cir. 1996).

The Landowners allege that Monsanto and GE caused PCBs to

enter onto their land, thereby interfering with their use and

enjoyment of it. Because the Court did not dismiss the

Landowners’ claims of negligence and abnormally dangerous

activity, the second element of the nuisance claim is

adequately pleaded. The question for the Court, then, is

whether the Landowners allege facts sufficient to support

their claim that the conduct of Monsanto and GE is a legal

cause of the invasion of their land. As the Supreme Court

recently clarified, “[f]actual allegations must be enough to

raise a right to relief above the speculative level, on the

assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Twombly, 127 S. Ct. at 1965

(citations omitted).

With respect to GE, the Landowners allege that “GE for

many years released, and continues to release, PCBs in the

air, soil, surface water and/or groundwater in, on and/or

adjacent to the plaintiffs’ properties” (Landowners’ Compl. ¶

10), and that this conduct “resulted in an intrusion and the

continued intrusion upon plaintiffs’ properties” (id. ¶ 199).

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These allegations are sufficient to support the claim that

GE’s conduct proximately caused the intrusion.

As for Monsanto, the Landowners allege that Monsanto

manufactured and sold PCB-containing materials and products to

GE, and that Monsanto concealed the dangers of PCB from GE.

Under New York law, “‘[e]veryone who creates a nuisance or

participates in the creation or maintenance thereof is liable

for it.’” Penn Cent. Transp. Co. v. Singer Warehouse &

Trucking Corp., 447 N.Y.S.2d 265, 267 (App. Div. 1st Dep’t

1982) (quoting Hine v. Aird-Don Co., 250 N.Y.S. 75, 77 (App.

Div. 3rd Dep’t 1931)); see also Restatement (Second) of Torts

§ 834 (“One is subject to liability for a nuisance caused by

an activity, not only when he carries on the activity but also

when he participates to a substantial extent in carrying it

on.”). 

In MTBE I, a court in this District ruled that a nuisance

claim may be maintained against the manufacturer or

distributor of gasoline containing MTBE where the complaint

contains allegations “sufficient to demonstrate defendants’

participation and assistance in the creation of a nuisance.”

175 F. Supp. 2d at 629. Specifically, the court in MTBE I

denied a motion to dismiss a nuisance claim against several

petroleum companies for contamination of wells, based on

allegations that the defendants had “knowledge of the dangers

MTBE poses to groundwater” and “failed to warn the downstream

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handlers, retailers, gasoline purchasers, government officials

and well owners.” Id. 

Similarly, in this case, the Landowners allege that

“[w]ith full knowledge of the hazards of PCBs, Monsanto made

the conscious decision to suppress and conceal these facts

from GE, the public and plaintiffs.” (Landowners’ Compl. ¶

77.) The Court finds that the factual allegations in the

Landowners’ complaint are sufficient to support the claim that

Monsanto participated to a substantial extent in creating the

nuisance, and that they are “enough to raise a right to relief

above the speculative level.” Twombly, 127 S. Ct. at 1965.

Accordingly, Monsanto’s and GE’s motions to dismiss the

Landlord’s nuisance claim are denied. 

J. TRESPASS

“Under New York law, trespass is the intentional invasion

of another’s property.” Scribner, 84 F.3d at 557 (citations

omitted). To be liable, the trespasser “need not intend or

expect the damaging consequence of his intrusion, he must

intend the act which amounts to or produces the unlawful

invasion, and the intrusion must at least be the immediate or

inevitable consequence of what he willfully does, or which he

does so negligently as to amount to willfulness.” Phillips v.

Sun Oil Co., 121 N.E.2d 249, 250-51 (N.Y. 1954). “To

constitute such a trespass, the act done must be such as will

to a substantial certainty result in the entry of the foreign

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matter.” Id. (citation omitted). 

1. GE

The Landowners allege that “GE knew that its PCBcontaining products were dangerous and that PCBs were

intentionally discharged, released, emitted and migrated onto

[the Landowners’] properties,” and that the Landowners’

properties “continue to be exposed to and contaminated by PCBcontaining products designed, manufactured, sold, distributed

and disposed by GE.” (Landowners’ Compl. ¶¶ 207, 210.)

GE contends that the Landowners have not alleged that GE

intended that the PCBs end up on their properties or that the

presence of PCBs on their properties was the inevitable

consequence of GE’s alleged discharge. However, the question

is not whether GE intended the consequences of its act -- the

invasion of PCBs onto the Landowners’ properties -- but

whether GE “intend[ed] the act which amounts to or produces

the unlawful invasion.” Phillips, 121 N.E.2d at 250-51; see

also Scribner, 84 F.3d at 557. GE does not dispute that it

used or disposed of PCB-containing products nor does it

dispute that it did so intentionally. 

The New York Court of Appeals has held that, when

“polluting material has been deliberately put onto, or into,

defendant’s land,” the defendant is liable for damage to his

neighbor’s land if the defendant “had good reason to know or

expect that subterranean and other conditions were such that

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there would be passage from defendant’s to plaintiff’s land.”

Phillips, 121 N.E.2d at 251. The Landowners allege that GE

knew, or should have known, that the PCBs would migrate onto

their properties. This allegation is sufficient to survive a

motion to dismiss.

Accordingly, GE’s motion to dismiss the trespass claim is

denied.

2. Monsanto

The Landowners allege that “Monsanto knew that its PCBcontaining products were dangerous and that PCBs were

intentionally discharged, released, emitted and migrated onto

[the Landowners’] properties” and that the Landowners’

properties “continue to be exposed to and contaminated by PCBs

designed, manufactured, sold and distributed by Monsanto.”

(Landowners’ Compl. ¶¶ 121, 124.) However, the presence of

PCBs on the Landowners’ properties can not be said to be the

“immediate or inevitable consequence” of Monsanto’s

manufacture, sale, and delivery of PCB-containing products to

GE. Accordingly, Monsanto’s motion to dismiss the claim for

trespass is granted. 

K. UNJUST ENRICHMENT

The Landowners bring a claim of unjust enrichment against

Monsanto and GE on the ground that they “have/or will incur

the costs of determining the nature and extent of

contamination on their properties and the cost of restoring

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their properties to their pre-contaminated condition” and

Monsanto and GE have been enriched “in that it has the use of

funds that it otherwise should have expended” to reimburse the

Landowners for these costs. (Landowners’ Compl. ¶¶ 130, 133,

216, 219.) Monsanto and GE each moves to dismiss on the

ground that the Landowners fail to state a claim.

Under New York law, “[u]njust enrichment is a

quasi-contractual remedy” used “as an alternative to contract,

where a contractual relationship has legally failed.” Reading

Int’l, Inc. v. Oaktree Capital Mgmt. LLC, 317 F. Supp. 2d 301,

333-34 (S.D.N.Y. 2003) (citing Lightfoot v. Union Carbide

Corp., 110 F.3d 898, 905 (2d Cir. 1997); Gidatex, S.r.L. v.

Campaniello Imps., Ltd., 49 F. Supp. 2d 298, 301 (S.D.N.Y.

1999)). 

The Landowners’ claim fails here because they have not

alleged that they had any contractual or quasi-contractual

relationship with Monsanto or GE. See Czech Beer Imps., Inc.

v. C. Haven Imps., LLC, No. 04 Civ. 2270, 2005 WL 1490097, at

*7 (S.D.N.Y. June 23, 2005) (“‘The requirements [of unjust

enrichment] clearly contemplate that the defendant and the

plaintiff must have had some type of direct dealing, an actual

relationship or some greater substantive connection.’”)

(quoting Redtail Leasing, Inc. v. Bellezza, No. 95 Civ. 5191,

1997 WL 603496, at *8 (S.D.N.Y. Sept. 30, 1997)).

Accordingly, Monsanto’s and GE’s motions to dismiss are

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granted with respect to the Landowners’ unjust enrichment

claim. 

L. WILLFUL AND WANTON MISCONDUCT

The Landowners allege willful and wanton misconduct to

support a claim for punitive damages against Monsanto and GE.

Monsanto and GE move to dismiss on the ground that a claim for

punitive damages is not a separate cause of action. The

Landowners agree that punitive damages is not a separate cause

of action for pleading purposes. See Rocanova v. Equitable

Life Assurance Soc’y of the U.S., 634 N.E.2d 940, 945 (N.Y.

1994) (“A demand or request for punitive damages is parasitic

and possesses no viability absent its attachment to a

substantive cause of action.”) 

“Under New York law, punitive damages are appropriate in

cases involving gross, wanton, or willful fraud or other

morally culpable conduct.” Action S.A. v. Marc Rich & Co.,

951 F.2d 504, 509 (2d Cir. 1991) (citations and quotation

marks omitted). Insofar as the Landowners allege willful and

wanton misconduct to support an award of punitive damages as

a separate cause of action, Monsanto’s and GE’s motions to

dismiss are granted. However, the Landowners’ allegations of

willful and wanton misconduct can be asserted as part of an

“underlying cause of action upon which a demand for punitive

damages can be grounded.” Rocanova, 634 N.E.2d at 945.

III. ORDER

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For the reasons stated above, it is hereby

ORDERED that the Order of the Court in this action dated

September 28, 2007 is amended to incorporate the discussion

set forth in the decision above; and it is further 

ORDERED that the motion to dismiss (06 Civ. 0266, Docket

No. 9) of defendants Monsanto Company, Solutia, Inc., and

Pharmacia Corporation (collectively, “Monsanto”) is GRANTED in

part and DENIED in part. The motion is GRANTED with respect

to the causes of action for breach of warranty, fraud,

assault, and battery; and it is DENIED with respect to the

cause of action for abnormally dangerous activity; and it is

further

ORDERED that the motion to dismiss (06 Civ. 3461, Docket

No. 6) of Monsanto is GRANTED in part and DENIED in part. The

motion is GRANTED with respect to the causes of action for

breach of warranty, fraud, assault, and battery; and it is

DENIED with respect to the cause of action for abnormally

dangerous activity; and it is further

ORDERED that the motion to dismiss (07 Civ. 3258, Docket

No. 11) of Monsanto is GRANTED in part and DENIED in part.

The motion is GRANTED with respect to the causes of action for

breach of warranty, fraud, negligent infliction of emotional

distress, trespass, unjust enrichment, and willful and wanton

misconduct; and it is DENIED with respect to the causes of 

Case 1:07-cv-03258-VM Document 30 Filed 11/02/2007 Page 40 of 42
41

Case 1:07-cv-03258-VM Document 30 Filed 11/02/2007 Page 41 of 42