Utility Pole Workers Claim No ‘Concrete Injury’ From Lead Cables Exposure: Verizon

Bostard’s original Aug. 23 class action alleged that his “direct and regular exposure” to Verizon’s toxic lead cables caused him “a present injury” that increases the risk he will develop more “catastrophic health effects” (see 2308240005). He amended his complaint Jan. 12 to assert that he’s not seeking personal injury damages, only relief for the “present economic injury” he suffers by having to pay for his own lead-poisoning tests (see 2401160001). The plaintiff's second amended complaint was filed March 18, “solely for the purpose” of adding 16-year Altice veteran Tony Rockhill as an additional plaintiff (see 2403190036).

The second amended complaint, like the two before it, contains “vague allegations” that aren’t “sufficiently tied” to Verizon, and don’t specify “any actual damages” that the plaintiffs suffered, said Verizon’s memorandum of law in support of its motion to dismiss. The plaintiffs “seek sweeping, state-wide relief based on alleged workplace exposure to lead from lead-sheathed cables while employed by third-parties, not Verizon,” it said.

Yet the plaintiffs “implicitly concede” that they don’t know whether their utility pole work “resulted in actual ingestion of lead,” said the memorandum. Bostard and Rockhill also assert “no present personal-injury damages,” it said. There are “innumerable sources of lead exposure found throughout the environment” that can’t be traced to Verizon’s cables, it said. The plaintiffs request medical monitoring “just to determine whether there is lead in their systems,” but their claims fail as a matter of law “for a litany of reasons,” it said.

The allegations show that each plaintiff lacks standing because neither “alleges any concrete injury or seeks personal-injury damages,” said the memorandum. The plaintiffs instead claim to have a “present economic injury” but point only “to possible, future costs of medical monitoring,” it said.

That doesn’t constitute a “present” injury, said the memorandum. The plaintiffs can’t cite an expense they would only incur “to ascertain whether they actually ingested lead as the concrete harm that confers standing to sue over alleged lead exposure,” it said. Nor can the plaintiffs show that any alleged future harm is "certainly impending," it said.

Despite a combined 44 years working around lead-sheathed cables, neither plaintiff “claims to have been diagnosed with, or to suffer from, a lead-related condition,” said the memorandum. Neither claims to have lead in his system, and neither plausibly alleges “any imminent risk,” it said.

All the plaintiffs’ claims “separately fail as a matter of law under the governing statutes of limitations,” said the memorandum. Bostard and Rockhill allege that they began working as utility workers in 1990 and 2008, respectively, it said. But by that time, according to the plaintiffs’ own allegations, any alleged workplace hazard from lead-sheathed cables was obvious, it said.

The potential for lead exposure from telecom cables “had been analyzed and studied by researchers for decades,” said the memorandum. It also had been the subject of federal regulation since the 1970s, and was well known to labor unions representing cable-provider employees like Bostard and Rockhill, it said.

Their claims here “accrued well before the applicable limitations period, which is two years for most of the claims and in no event more than six years,” said the memorandum. The second amended complaint “fails to plead any basis for saving this case” from the plaintiffs’ delay, it said.

Bostard and Rockhill “fail to plead the substantive elements of their three causes of action,” said the memorandum. For their negligence claim, any duty to protect them from workplace lead exposure “lay with their employers under federal and New Jersey law,” it said. The plaintiffs can’t “shift that duty” to Verizon, it said.

The plaintiffs also fail to plead other elements of a negligence claim for medical monitoring, “including injury, proximate causation, significant exposure to lead, and a distinct increased risk of a serious latent disease,” said the memorandum. The plaintiffs can’t “overcome these defects by bootstrapping an alleged violation” of the Resource Conservation and Recovery Act (RCRA) into a negligence per se claim, it said.

Negligence per se claims are virtually nonexistent under New Jersey law, and the plaintiffs can’t “invoke that theory here,” said the memorandum. The second amended complaint “wrongly attempts to circumvent the statutory scheme of RCRA, ignores New Jersey precedent on the use of negligence per se, and does not plausibly allege any underlying statutory violation,” it said.

The plaintiffs’ alleged exposure to lead “in a specialized, occupational role” also can’t support a public nuisance claim, which fails because the plaintiffs haven’t alleged “the elements of special injury and public right,” said the memorandum. In all events, “individualized questions” inherent to the plaintiffs’ claims “compel striking the class allegations,” it said.

This is a case about possible lead exposure brought by two plaintiffs who don’t know if there’s lead in their systems, fail to allege any present injury or imminent risk of harm, could have brought their “speculative claims” over a decade ago but chose not to, and can’t plead elements “essential to each of their claims,” said the memorandum. The court should dismiss the second amended complaint with prejudice, it said.