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Two major New Hampshire lawsuits filed against Saint-Gobain

When Saint-Gobain signed the consent decree to provide municipal water connections for the disputed homes in Merrimack, Bedford and Litchfield on March 20, Clark Friese, the assistant commissioner of the Department of Environmental Services, said, “The decree does not limit other legal avenues. Citizens, towns or businesses can file class actions suits or sue, there is no legal infringement.”

A class action suit had already been filed and another suit representing individual plaintiffs was filed more recently.

The first suit, filed by Gottesman & Hollis, Nashua and the Hannon Law Firm, Denver, is a class action suit that will represent all residents of occupied properties in Merrimack and Bedford who are served by the Merrimack Water District. “The number of owned properties exceeds 500 and there are over 1,000 members of the classes who have been exposed to PFAs from Saint-Gobain,” the suit states.

The second suit, filed by Nixon, Vogelman, Slawsky Simoneau in Manchester, represents a series of residents, mostly from Merrimack who are suing Saint-Gobain and the Merrimack Village District Water Works.

The class action suit was filed in June, 2016 and will be heard in September, 2019. It will be filed for class action certification this summer. “We don’t think it will be a problem to be certified,” Paul DeCarolis, a Gottesman & Hollis lawyer said. “The case started in a state court and was removed to a federal court after a fight over jurisdiction.”

No court date is available for the second suit.

Both cases condemn Saint-Gobain for its use of PFOAs that contaminated MVD water. They ask for compensation for injuries, the losses in property value of their homes, home repair and medical monitoring.

The first case seeks “damages arising out of releases, discharges, spills and leaks of toxic chemicals from the Saint-Gobain plant. These damages include the loss of value and deferred marketability of properties, the cost of remediating the properties, the cost of mitigating the contaminated water and cost of alternative water sources. Damages also include the cost of medical monitoring for the early detection of illness and disease caused by their exposure to toxic chemical released from the Saint-Gobain site.”

Both cases cite Saint-Gobain as the primary defendant. The first case names Gwenail Busnel, a Saint-Gobain general manager as a defendant while the second case includes Busnel and Chris Gilman, who served as a Saint-Gobain facility manager since 2012.

While Saint-Gobain and its managers are the lead defendants in both suits, the MVD is also charged in the second suit. “The MVD did not take appropriate steps to prevent the contamination of its wells with PFCs, did not adequately warn and notify the Plaintiffs of the contamination, and did not take adequate steps to remediate the situation,” the suit states. “As a direct result of the negligent and unsafe manner in which Defendant operated the water supply, PFCs have been consumed by Plaintiffs.”

The names of individual plaintiffs were cited in both suits. In the second suit, all but one of the plaintiffs are from Merrimack, while the towns of plaintiffs in the first suit are not listed.

Saint-Gobain is defending itself against a similar lawsuit in Hoosick Falls, NY and it suspended its own lawsuit against the state of Vermont that challenged its lowering of the safe water drinking standard for PFOAs to 20 parts per trillion, which is lower than the EPA standard of 70 ppt.

The first suit establishes the history of the PFOA issue in Merrimack, from the days when Chemfab, the company that preceded Saint-Gobain, first contaminated the water supply of Merrimack and Litchfield with chemicals affiliated with its plastics business. On Feb. 26, 2016, Saint-Gobain reported PFOA in MVD water. On March 4, 2016, DES began its investigation into the presence of PFCs in drinking water in Merrimack. On March 13, 2016 DES received well test results in Merrimack and Litchfield and on April 1, 2016 it began providing bottled water to homes testing above the 70 part per trillion rate for PFOAs in their well water.

Since then, Saint-Gobain has agreed to fund bottled water to residents with a mile of the Saint-Gobain facility that tested above 70 ppt; it reimbursed the state for the cost of providing bottled water; it supported soil-sampling at locations near the Merrimack facility; and implemented a site investigation work plan.

On March 20, 2018, it agreed to pay for municipal water connections to homes it had initially declined to connect. And now it is faced with lawsuits from residents who want to be compensated for their tribulations since 2016.

Mark Cheffo, a lawyer for the firm Quinn Emanuel Urquhart & Sullivan, which represents Saint-Gobain, said, “In all cases brought against Saint-Gobain to date, including in New Hampshire, we have or plan to seek dismissal on the basis that, among other things, medical monitoring is not a legally recognized causeof action and so-called property ‘stigma’ claims are not recognized injuries under the law. Further, Saint-Gobain contends that the plaintiffs’ claims are fundamentally unique and dissimilar and therefore cannot proceed as class actions. Saint-Gobain plans to defend itself against the claims in the pending lawsuits.”