Verizon Moves to Dismiss Lead-Exposure Claims of Ex-Comcast Utility Worker

There’s “no merit” to plaintiff Greg Bostard’s allegations that he spent decades as a Comcast utility pole worker and was regularly in close proximity to Verizon’s lead-sheathed cables, said Verizon’s memorandum of law Monday (docket 1:23-cv-08564) in U.S. District Court for New Jersey in Camden in support of its motion to dismiss Bostard’s Aug. 23 complaint (see 2308240005).

Bostard’s class action seeks Verizon's funding of medical monitoring “to permit early detection of future lead-related conditions,” and “abatement” to remove and properly dispose of the lead-sheathed cables. The New Jersey resident says he scaled utility poles for Comcast for 29 years. All the while, he alleges, he was in direct and regular contact with Verizon’s lead-sheathed cables and ingested and inhaled lead from them.

But despite Bostard’s “lengthy career,” he doesn’t allege that lead “has ever been detected in his body or that he has ever suffered any lead-related harm,” said Verizon’s memorandum. His complaint also can’t account for why he waited decades “to file suit over a well-known occupational circumstance for which he was entitled to safety training from Comcast,” it said.

Lawsuits can’t proceed “on the basis of irrational fears stoked by dubious journalism,” said Verizon’s memorandum. It cited the “poorly supported claims” in a series of Wall Street Journal articles in July that legacy telecom cables were spreading lead where Americans live, work and play. Lawsuits, said the memorandum, “must be built from essential elements like injury, standing, and timeliness” -- requirements that Bostard can’t “satisfy here,” it said.

Each claim in Bostard’s complaint “fails as a matter of law,” said Verizon’s memorandum. The complaint fails to state a claim for negligence in Count 1, it said. Despite his lengthy career, Bostard doesn’t claim “that lead was ever detected in his body, at an elevated level or otherwise,” and he can’t allege “the elements necessary to plead Article III standing,” it said.

Bostard also can’t allege that Verizon “had a duty to protect him from lead-sheathed cables,” said the memorandum. Federal law imposes on Bostard’s own employer, Comcast, “the duty to protect him from workplace hazards, including lead exposure,” it said. Bostard can’t “summarily shift that duty to Verizon,” it said.

Bostard also fails to allege “any basis for ordering Verizon to fund ongoing medical monitoring,” said the memorandum. “His general concern about one day presenting any one of innumerable, nonspecific medical conditions is too broad" to support a remedy only available in specific circumstances, and only "to help meaningfully avoid particularized types of harm,” it said.

The complaint’s negligence per se claim in Count 2 also fails as a matter of law, “including for lack of standing,” said the memorandum. It makes no difference that Bostard “purports to allege a violation of the federal Resource Conservation and Recovery Act,” it said.

An alleged RCRA violation doesn’t “confer standing on a private citizen,” said the memorandum. Allowing Bostard “to circumvent the statutory scheme” that Congress designed “by recasting a RCRA claim as a stand-alone negligence per se claim under state law” would contradict 3rd Circuit and New Jersey precedent, it said.

Bostard can’t pursue his public nuisance claim in Count 3 “because he only alleges exposure to lead-sheathed cables through direct contact in an occupational capacity,” said the memorandum. He doesn’t identify “any special injury,” it said.

Under New Jersey “nuisance principles,” that deprives Bostard “of the standing necessary for any private citizen to assert a public nuisance claim,” said the memorandum. The complaint’s “general invocation” of health and safety is also insufficient to allege the element of “public right,” and can’t be “dressed up in the guise” of public nuisance, it said.

Verizon argues that all of Bostard’s claims are barred under the “governing” statutes of limitations, which are two years for any alleged personal injury, and no more than six years for any other form of relief, said the memorandum. Federal workplace laws began regulating utility workers and occupational lead exposure in the 1970s, it said.

By that same time, scientists and unions were reporting on the hazards of lead-sheathed cables, said the memorandum. Bostard was a utility worker for decades, “and was on notice of his potential claims throughout that time,” it said: “He waited too long to file suit, and his claims are now time-barred.”

Bostard also can’t plead any class claim under Rule 23 of the Federal Rules of Civil Procedure, said the memorandum. “Claims for class-wide medical monitoring that implicate too many individualized circumstances are irreconcilable with the requirements for class treatment and should be dismissed on the pleadings,” it said. Nothing about Bostard’s case warrants or meets the “precatory thresholds” for using the special procedures of Rule 23 “for adjudicating claims on behalf of absent putative class members,” it said.