When the Town of Lexington detected PCBs in building caulk and then in indoor air in an elementary school built in 1960-61, it sued Pharmacia, alleging that Pharmacia sold a product – PCBs – with a design defect. In alleging the design defect, Lexington largely relied on the decision to ban the sale of PCBs, and the extensive regulation of PCBs under TSCA. Judge Denise Casper of the District of Massachusetts concluded that this was not enough and she granted Pharmacia’s motion for summary judgment. As Judge Casper stated:
While Congress’s eventual ban of PCBs is indicative of their inherent danger, the fact that Congress banned PCBs does not demonstrate that the risks addressed by Congress in 1979 were reasonably foreseeable in 1961, when construction of [the school] was completed….
Massachusetts law … requires that the design of the product avoid the risks that were reasonably foreseeable or discoverable by reasonable testing at the time the product was sold.
Concluding that there was no evidence that it was known in 1961, not just that PCBs were dangerous, but that PCBs in building caulk were sufficiently volatile to pose indoor air risks, summary judgment for Pharmacia followed.
Judge Casper also rejected that argument that PCBs were so flawed that the design defect was inherent in any PCBs, so that Pharmacia should have manufactured a completely different plasticizer that did not use PCBs. As she noted, that was really an argument that should have been directed at the caulk manufacturer. However:
Lexington has not sued the manufacturer of the caulk used at Estabrook (nor can it identify the caulk manufacturer). It may not impute the absent manufacturer’s liability, if any, to Pharmacia, which did not develop the caulk formulation.
In other words, don’t just blame the deep pocket.