A federal court in Pennsylvania has dismissed several claims without prejudice in putative class litigation alleging that the installation of spray foam insulation (SPF) caused homeowners’ property damage and physical injury. Slemmer v. McGlaughlin Spray Foam Insulation, Inc., No. 12-6542 (U.S. Dist. Ct., E.D. Pa., order entered July 3, 2013). The court deferred ruling on whether the Restatement (Second) of Torts or Restatement (Third) of Torts applies to the strict liability claim, pending its resolution by the state supreme court in Tincher v. Omega Flex, Inc.
The plaintiffs sued the manufacturer and installer of SPF in their home, alleging that the product is highly toxic and remains that way after installation. They alleged negligence, strict liability, breach of express and/or implied warranties, unjust enrichment, violation of consumer protection acts, equitable and injunctive relief, and medical monitoring. The plaintiffs proposed a nationwide class and Pennsylvania subclass of owners and residents of properties containing the product.
Among other matters, the court refused to dismiss the case under the local controversy exception of the Class Action Fairness Act, finding that the installer failed to carry its burden of showing that the exception should apply. The court also refused to dismiss the plaintiffs’ negligence, implied warranty, violation of consumer protection law, and unjust enrichment claims, finding them adequately pleaded or properly pleaded in the alternative.
The court dismissed without prejudice the plaintiffs’ (i) negligent supervision claim against the manufacturer, finding no law to support “the contention that [its] training and certification created a legal duty to supervise SPF installers”; (ii) breach of express warranty claim for insufficient pleading; (iii) medical monitoring claim for failure “to identify either a serious latent disease which requires monitoring or a medical monitoring procedure suitable in this case”; and (iv) injunctive relief, because such request does not by itself state a cause of action. The court ordered the plaintiffs to amend their complaint, if warranted, by July 17.