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Gates v. Rohm & Haas Co.

ELR Citation: 38 ELR 20211
Nos. No. 06-1743, (E.D. Pa., 07/30/2008)

A district court denied a chemical company's motion to dismiss property owners' common-law property claims for damages arising out of alleged continuing airborne vinyl chloride contamination and past groundwater contamination. The owners argued that this "physical invasion" of their property by a carcinogenic contaminant caused a diminution in value of their property, in part due to the stigma caused by the alleged contamination. The company argued on its motion for summary judgment that these claims fail because Illinois law does not recognize a cause of action for "economic harm" absent physical damage. However, the fundamental factual question at this stage in the litigation is whether there is sufficient evidence of permanent or ongoing physical injury to the property. Because there is sufficient evidence in the record to establish that vinyl chloride is a carcinogen and, thus, a hazardous chemical, the property owners need only show that vinyl chloride was and continues to be physically present on their properties. Here, there is sufficient evidence to conclude that in addition to past groundwater contamination, there is air contamination that continues into the present. Moreover, the physical presence of vinyl chloride in the air, even if undetectable, constitutes a physical injury to the property for purposes of common-law property damage claims. In addition, summary judgment is inappropriate as to the appropriate measure of damages at this early, pre-merits discovery stage.

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