A federal district court judge granted The Sherwin-Williams Company’s motion to dismiss an environmental and toxic tort class action.  Plaintiffs in Brad Lafferty, et al. v. The Sherwin-Williams Company, Case No. 1:17-cv-06321 (D.N.J. Aug. 21, 2018) alleged that Sherwin-Williams’s operation of a paint manufacturing plant in Gibbsboro, NJ from 1851 to 1978 resulted in the environmental releases of hazardous substances.  Residents living near the plant filed a putative class action seeking personal injury, property damage, and medical monitoring damages. The EPA is currently overseeing Sherwin-Williams’s remediation efforts at the Gibbsboro plant. Plaintiffs complained that Sherwin-Williams failed to adequately investigate and remediate the contamination.

The District of New Jersey found that plaintiffs’ claims of inadequate remediation were preempted by CERCLA, relying on the 10th Circuit’s decision in New Mexico v. General Elec. Co., 467 F.3d 1223 (10th Cir. 2006), where the court held that federal law barred a state attorney general from claiming an EPA-ordered remediation plan was inadequate. The court then dismissed the medical monitoring claims because plaintiffs had failed to “identify specific substances to which Plaintiffs were actually exposed” that gave rise to injury.  See Brad Lafferty, et al. v. The Sherwin-Williams Company, et al., Case No. 1:17-cv-06321, at *8 (D.N.J. Aug. 21, 2018) (emphasis in original).  The court further determined that plaintiffs did not adequately plead the necessary elements for class certification under Rule 23, such as common issues or ascertainability, and in doing so, held that “within the Third Circuit Rule 12 can be used to dismiss class allegations that fail to satisfy Fed. R. Civ. P. 12(b)(6).”  Id. at *9-11.  In dismissing the case, the court did not give plaintiffs an opportunity to file an amended complaint.