Source: http://www.sandiegouniontribune.com, December 11, 2015
By: Joshua Emerson Smith

San Diego firm sues on behalf of cities facing expensive cleanups to remove PCB chemicals

In a move that might give corporate America chills, a San Diego-led legal team is testing a strategy aimed at expanding companies’ liability for cleaning up pollutants — even if those companies didn’t directly spill or release the toxins.
The attorneys’ target is the St. Louis-based corporation Monsanto, which makes everything from pesticides to genetically modified seeds. In lawsuits filed on behalf of San Diego and a growing number of cities, they’re seeking untold millions from Monsanto for remediation projects, including dredging of tainted sediment in San Diego Bay and efforts to address stormwater contamination in the city.
Trial lawyers and corporate defense attorneys agree that if the litigation against Monsanto succeeds, it could embolden groups across the country to sue other chemical makers in a bid to recoup cleanup and public-health costs.
The Monsanto cases could largely hinge on how much and when the multinational conglomerate knew about the dangers of a class of chemicals known as polychlorinated biphenyls, or PCBs, which have been linked to cancer, neurological damage, thyroid problems and reproductive complications.
Critics have said Monsanto continued to pursue profits long after confirming that there’s no safe way to use PCBs, which invariably seep into soil and water. The company has maintained that it responsibly scaled back and then completely ceased making the chemicals as information came to light about their hazardous effects.
“I can tell you that Monsanto is not responsible for the costs alleged in this matter,” company spokeswoman Charla Lord said in a statement to The San Diego Union-Tribune.
“It is important to remember that the [company] first notified its customers and then voluntarily stopped manufacturing … after confirming scientific research,” she added.
John Fiske disputes that version of history.
“It’s about the conduct of the defendant who has risked human health for the advancement of making profits,” said Fiske, a lawyer with Gomez Trial Attorneys in San Diego who is heading up the cases filed in federal court for San Diego, San Jose, Oakland and Spokane, Wash.
His team hopes to eventually represent dozens, even hundreds, more cities trying to deal with pollution caused by PCBs.
In recent years, federal and state regulators have tightened standards for cleaning up PCBs in bays, rivers and creeks. As residents face warnings or bans on fishing in affected areas, municipalities have shelled out millions to contain or get rid of the toxins.
The lawsuits filed by Fiske’s group are based on what’s known as public nuisance law. They allege that Monsanto created a public nuisance by manufacturing and selling PCBs despite knowing the chemicals would become a global contaminant.
While such cases have historically failed in other parts of the country, a California court bucked the trend a year ago with a $1.15 billion judgment in a public nuisance case against lead-paint manufacturers.
That raised eyebrows in the corporate world.
Days after the ruling, legal powerhouse Morrison & Foerster put out an alert to clients of its product liability division, warning that the decision could have “far-reaching impacts.”
“This could potentially frustrate innovation and ability to place useful products in the stream of commerce in California,” Peter Hsiao, a partner with the firm, said in an interview with the Union-Tribune.
With the lead-paint ruling being appealed and the lawsuits against Monsanto escalating, Hsiao said his clients are watching interpretations of public nuisance law in California “very closely.”

History of PCBs

Monsanto has dealt for decades with the fallout of making the now-banned PCB compounds, marketed under the trademarked name Aroclor.
The compounds have become environmentally ubiquitous. Scientists believe the chemicals’ rapidly spreading nature has contaminated nearly every human, fish and creature on the planet to some degree. The chemicals bioaccumulate, concentrating in marine animals often eaten by people, such as salmon, bass, halibut and sturgeon.
From 1929 through 1977, Monsanto produced virtually every drop of PCBs in the country — about 600,000 tons. Largely designed for keeping electrical equipment cool and insulated, the fluids were widely used in everything from highway paint to caulk to pesticides.
In its statement to the Union-Tribune, Monsanto distanced itself from the contamination controversy, something it began doing in the 1990s when it spun off the chemical and pharmaceutical companies Solutia and Pharmacia. All three companies have been routinely named in litigation surrounding PCBs, including the most recent efforts by Fiske and his colleagues.
“The PCBs manufactured by the former Monsanto were sold to a variety of companies who incorporated them into electrical equipment, construction and building materials, plastics and other products,” said Monsanto spokeswoman Lord. “If those companies or other third parties improperly disposed of products or improperly used any material which created the need for the cleanup of San Diego Bay, then they bear responsibility for the costs.”
While Monsanto has achieved legal success by arguing it’s not responsible for how others handled its PCB compounds, that strategy might not be enough to fend off the most recent lawsuits.
Under California’s evolving standards for public nuisance law, companies may be held liable for chemical contamination if they manufactured and marketed a product despite knowing its dangers.
“Promotion of a product with knowledge of the hazard is essential for liability,” said Albert Lin, a professor at the UC Davis School of Law, where he specializes in environmental and natural resources law.
Fiske and the other lawyers representing the four West Coast cities contend that internal Monsanto documents and testimony from experts will show the corporation concealed the dangers of PCBs going back decades.
“Monsanto basically unleashed a virus that couldn’t be contained and doesn’t go away,” said Scott Summy, an environmental attorney with Baron & Budd, a Texas-based law firm collaborating on the cases.
According to documents submitted into the court record, Monsanto officials discussed at least as early as 1969 continuing “sales and profits” of PCBs despite knowing the chemicals were likely a “global contaminant.”
“When you talk to Monsanto, their argument is, ‘It was a legal product and someone else spilled it,’” Summy said. “But what they don’t tell you is there was no way not to spill it.”

Scope of liability

Outlawed by the federal government in 1979, PCBs were found to be accumulating in the environment in increasingly dangerous amounts. The chemicals began showing up in everything from breast milk to sea lions.
Starting in the mid-1980s, Monsanto faced lawsuits from workers claiming PCBs had ruined their health. Plaintiffs who had retired from Westinghouse Electric in St. Louis said Monsanto failed to warn them of the chemicals’ hazards.
Complicating the legal cases, PCBs have no signature ailment. Unlike some products such as asbestos, which is directly responsible for a particular type of cancer, PCBs are linked to a broad range of medical conditions, including liver damage, peeling skin and memory loss.
Monsanto settled some cases and prevailed in others, successfully arguing that workers’ ailments couldn’t be directly linked to PCB exposure.
In the early 2000s, Monsanto faced a slew of lawsuits by the residents of Anniston, Ala., one of two locations where the corporation made the industrial coolant. Plaintiffs said Monsanto poisoned the town by dumping millions of pounds of PCB fluid into a prominent creek and open-pit landfills.
The case was settled in 2003 for $700 million, but the long-term liability for Monsanto could prove to be the thousands of internal memos that surfaced as part of the trial.
Acquired by the Washington Post from plaintiffs’ lawyers around 2002, the material reportedly included Monsanto documents in which company officials discussed profit-making despite the well-known ills of PCBs. The memos had labels such as: “CONFIDENTIAL: Read and Destroy.”
As early as 1966, according to reports of the documents, Monsanto employees found that fish thrown into the heavily contaminated creek in west Anniston started bleeding and losing their skin within 10 seconds.
Over the years, Monsanto has largely shielded itself from product liability cases because it only made the PCBs, not the products that contained those chemicals.
Corporate settlements have largely focused on businesses directly tied to PCB disposal locations. In such cases, Superfund sites, designated by the U.S. Environmental Protection Agency, are typically created for eventual cleanup at the expense of companies deemed liable — and often taxpayers as well.
Frustrated by such situations, environmental and public-interest attorneys have looked for legal workarounds.
During the past decade, lawyers around the country have tried public nuisance strategies to hold manufacturers of lead paint accountable, with little to no success.
That was the case until last year, when a Santa Clara Superior Court judge ruled in favor of nine California cities and ordered five of the largest makers of lead paint to pay $1.15 billion into a remediation fund for homeowners.
The paint manufacturers challenged the use of public nuisance law, but an appellate court upheld its application, creating a precedent.
“That court was really progressive on its use of public nuisance, versus New Jersey, which classically let the paint manufactures off the hook,” said Ken Rumelt, a professor at Vermont Law School’s Environmental and Natural Resources Law Clinic.
“As far as I’ve seen, California’s the only place that currently allows this claim for public nuisance,” he added. “There’s always that possibility when you see successes in a lawsuit, it prompts attorneys in other states where the law isn’t settled to try to push the law in that direction.”
With thousands of PCB-contaminated bodies of water across the nation, it’s unclear how many more municipalities will get on board with Fiske and his team. Their legal strategy has waded into untested waters in Washington, where public nuisance laws isn’t as developed.
All of the team’s cases against Monsanto are in the preliminary stages.