Monsanto Must Face Most Of Illinois’ PCB Claims
By: Enrique Serna
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Monsanto Must Face Most Of Illinois’ PCB Claims
Written By: Lauraann Wood; Editing by Linda Voorhis
Re-Posted from Law360 (May 8, 2023, 6:26 PM EDT) — An Illinois federal judge on Friday largely rejected Monsanto‘s attack against a public nuisance suit filed by the state of Illinois claiming the company knowingly contaminated natural resources when it manufactured and sold highly toxic chemicals for consumers statewide.
U.S. District Judge Robert Gettleman disagreed with several of Monsanto’s challenges to either Illinois’ standing or the state’s theory of liability for several claims in its lawsuit targeting the Bayer subsidiary’s past manufacture and sale of polychlorinated biphenyls, or PCBs, which are highly carcinogenic chemicals once found in industrial and consumer products.
However, he did agree that Illinois pursued an untimely claim under the Fish and Aquatic Life Code and improperly sought medical monitoring as a form of relief without alleging any present physical injury exists because of Monsanto’s conduct.
“Absent an allegation of any present injury, the state cannot recover for the risk of future injury,” Judge Gettleman said.
PCB production was banned in 1979 under the Toxic Substances Control Act but may be found in some electrical equipment, motor oil, thermal insulation, adhesives, oil-based paint and other products that were manufactured before the ban took effect, according to the U.S. Environment Protection Agency’s website. Monsanto manufactured more than 99% of the commercial PCBs used nationwide, largely out of its plant in Krummrich, Illinois, before it stopped producing the chemicals in 1977, Illinois claims.
The state launched its suit in September claiming Monsanto knew as early as the 1930s that PCBs were hazardous chemicals that could produce “systemic toxic effects” from prolonged exposure and persist indefinitely in soil and water. However, the company opted to protect its reputation and revenues rather than its neighbors by stating publicly that it didn’t believe the chemicals were seriously toxic and didn’t know how they could be getting into the environment, the state claims.
Monsanto’s dismissal bid first targeted the public nuisance claim, arguing state law doesn’t recognize such liability when it comes to placing a product into the stream of commerce. Judge Gettleman rejected that argument, citing the company’s failure to meaningfully respond to cases in which courts analyzed whether a defendant created or participated in the alleged nuisance.
The judge also rejected Monsanto’s argument that Illinois’ lack of exclusive possession over the natural resources at issue deprived it of standing to pursue any trespassing claims in its case. Although neither party pointed to Illinois case law on the issue, he said the state had the “better argument” by asserting its standing as a trustee that can bring the same actions as an ordinary owner of those resources could bring.
“If the state cannot bring the action to protect its natural resources, those resources would remain unprotected,” Judge Gentleman said.
The judge also rejected Monsanto’s argument that Illinois is seeking an “unprecedented expansion” to the theory of strict liability by trying to impose an otherwise nonexistent duty to the public or the state itself as it relates to environmental protection. The company argued Illinois shouldn’t be allowed to pursue strict liability claims because it was neither a user nor a consumer of the chemicals at issue, yet the company acknowledges that state law extends a manufacturer’s duty to individuals who could be reasonably foreseen to suffer an injury through intended use of its product, he said.
Monsanto similarly argued that Judge Gettleman should have tossed Illinois’ negligence claims since it didn’t owe the public any duty relating to its PCB production and distribution. But in accepting Illinois’ accusations as true, “the court concludes that as a matter of public policy it is best to place the duty to protect against the harm on defendants, as the party best able to prevent it,” Judge Gettleman said.
A representative for Bayer told Law360 in a written statement Monday that the company is pleased Judge Gettleman narrowed the suit by removing the state’s request for a medical monitoring fund and its Fish and Aquatic Life Code claim. But “with respect to the remaining claims, the court’s decision is a preliminary ruling and the company is confident that the full evidentiary record will demonstrate that it is not liable for the alleged damages,” the statement continued.
Representatives for the state didn’t immediately respond Monday to a request for comment.
The state is represented by Jay Eisenhofer, Kyle McGee, Jason Wilson, Viola Vetter and Juliana Carter of Grant & Eisenhofer PA, Joseph Power, Larry Rogers Jr., Robert Thomas, Jonathan Thomas and James Power of Power Rogers LLP and Stephen Sylvester, Elizabeth Dubats and Nancy Tikalsky of the Office of the Illinois Attorney General.
Monsanto is represented by Adam Miller, Brent Dwerlkotte, Kathryn Larkins, Riley Mendoza and William Northrip of Shook Hardy & Bacon LLP.
The case is State of Illinois v. Monsanto Co. et al., case number 1:22-cv-05339, in the U.S. District Court for the Northern District of Illinois.
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