CN) - The manufacturer and installer of spray polyurethane foam cannot dismiss claims that the allegedly carcinogenic insulation "remains toxic" after installation, a federal judge ruled.
After Pennsylvania residents Daniel and Paula Slemmer had McGlaughlin Spray Foam Insulation Inc. install SPF in their home last year, they sued the certified installer and the foam manufacturer, Barnhardt Manufacturing Co.
Purporting to represent a class, the Slemmers say SPF contains carcinogenic chemicals, "remains toxic" after installation, and poses health hazards to occupants of homes where it is used.
The complaint, filed in the Eastern District of Pennsylvania, says the class members "have developed a significantly increased risk of contracting a serious latent disease" due to the insulation, which has resulted in "off-gassing, damaging the real and personal property of plaintiffs and class members and/or caused personal injuries resulting in eye irritations, sore throats and cough, nausea, fatigue, shortness of breath, and/or neurological harm."
The only remedy for the "highly toxic" insulation is its complete removal, the plaintiffs say.
They assert claims against Barnhardt and McGlaughlin for negligence, strict liability, breach of warranty, unjust enrichment and violation of Consumer Protection Acts, seeking equitable and injunctive relief, as well as medical monitoring. Meanwhile they have charged the manufacturer with only negligent supervision.
The complaint requests a recall of SPF, remediation of class members' homes, the creation of a public awareness campaign, and an end to the misrepresentation of the dangers of SPF.
Both defendants moved to dismiss, and the plaintiffs cross-moved for discovery.
U.S. District Judge Jan DuBois partially granted the defendants' motions and denied the plaintiffs' cross-motion as moot July 3, holding that the Slemmers "have failed to identify either a serious latent disease which requires monitoring or a medical monitoring procedure suitable in this case."
The court also tossed aside the claims for negligent supervision and breach of express warranties.
"Plaintiffs cite no law, and the court has found none, supporting the contention that Barnhardt's training and certification created a legal duty to supervise SPF installers," DuBois wrote.
But the breach of implied warranty, negligence, unjust enrichment, and Pennsylvania Unfair Trade Practices and Consumer Protection Law claims survived, even though the plaintiffs did not purchase SPF directly from Barnhardt.
"According to the complaint, defendants marketed and advertised SPF as a 'safe, "green," and non-toxic product,' and such marketing 'caused actual damages to consumers, including plaintiffs and class members who purchased defendants' SPF system because of defendants' representations and conduct,'" DuBois wrote. "Plaintiffs further plead that 'they would not have purchased SPF had the damaging side effects been disclosed to plaintiffs.' The court agrees that plaintiffs have alleged justifiable reliance upon specific misrepresentations by defendants."
The plaintiffs may amend the claims that were dismissed, according to the judgment.