Suffolk County Water Authority v. Dow Chemical Co.

987 N.Y.S.2d 819 (2014)

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Nature of the Case

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Facts

P sued D as a manufacturer of perchloroethylene (perc or PCE), and R.R. Street & Co. (Street) as an exclusive distributor of perc and as a manufacturer of a perc-containing product. P sued Ds under market share liability to recover for property damage allegedly stemming from the contamination of plaintiff water authority's wells with perchloroethylene (perc). P claims perc is defective from the moment of its manufacture and is a generically marketed fungible product that took many years from the point of its seepage into the ground to appear in P's wells, where it caused extensive environmental harm. It was essentially impossible for P to identify which manufacturer contributed to what extent to the contamination of the wells. P seeks to use the market share theory provided it could establish that the product was fungible and dangerous as designed from the point of manufacture, the impossibility of identifying chemical manufacturer defendants and the existence of a lengthy latency period. D moved to dismiss. The Hymowitz case permitted the use of market share liability in a unique instance where injured plaintiffs were unable to prove which manufacturer of DES actually made the product taken by their mothers and allowed several liability to be imposed on all market participants according to the share each contributed to DES sold for use during pregnancy. Ds ask this court to dismiss the complaint in toto, as P has clearly asserted that it cannot identify which chemical company produced the precise PCE in any of the subject contaminated wells. In the alternative, Ds ask this court to dismiss so much of the first amended complaint as to P's market share theory.