For weeks now, I have been writing about the seismic battle between Monsanto and GE over reimbursing Monsanto for the billions they have paid in damage awards for PCB contamination across the land. While deeply relevant to us, the fight is being waged far away in St. Louis, Mo., home of Monsanto’s corporate headquarters. But in recent days, the fight has moved close to home as our Berkshire neighbor, Lee, takes center stage in the battle to secure economic and environmental justice from both PCB giants.
On March 13, 2024, little Lee, population 5,788, joined the fray, suing both Monsanto and General Electric in Berkshire County Superior Court in Pittsfield:
By detailing how GE has fought Monsanto’s demand that GE honor the indemnity agreement they signed, I worry I have led you into the legal weeds—especially the time I spent describing how GE fought to move the court case from state court in St. Louis to federal court in “Monsanto v. General Electric — Round Three.”
But you can’t make this stuff up. Because in an instant, GE has made that strategy incredibly relevant to us in Berkshire County. How? By relying on the exact same unsuccessful arguments to remove the recently filed Lee case from being heard by a jury of their/our peers here in Berkshire County district court to the federal court in Boston. On April 9, 2024, GE filed this motion:
And, not surprisingly, Lee responded with its own brief on April 12, 2024:
Let’s take this in chronological order. In my opinion, Lee’s lawsuit against Monsanto and GE is a justifiable act of last resort. A combination of GE’s still prodigious influence, the unwillingness of the Environmental Protection Agency (EPA) to insist GE take advantage of a cleanup regime like Thermal Desorption, and the cowardice and self-interest—including financial compensation from GE—of the other Housatonic River communities has led to the chilling decision to approve the construction of an unnecessary but massive PCB landfill above a geologically suspect area in Lee. Sadly, this coalition of convenience has ratified the official and now unappealable CERCLA cleanup plan for the Housatonic River, a plan which, when finished after 13 years, will still leave great amounts of PCB contamination in the waterway.
Lee has unsuccessfully tried to convince the EPA to change its mind and revert back to its well-reasoned 2016 order that GE transport the PCB-contaminated sediments and bank soils to an out-of-state, federally licensed toxic-waste landfill. Now that it has exhausted all other remedies, the small town of Lee—like so many other far larger American communities—will go to court.
I have previously dealt with the pertinent history of this battle in “Monsanto v. General Electric — Round One,” “Monsanto v. General Electric — Round Two,” and “Monsanto v. General Electric — Round Three.” I have described how Monsanto resorted to a court battle because its PCB customers reneged on a contract they signed pledging that, in return for more PCBs, they would help pay for any of Monsanto’s costs based on claims its PCBs were responsible for contamination.
Some quick context for the Lee lawsuit: While Monsanto manufactured the PCBs, companies like GE modified them to make extraordinary fortunes. Sadly, it took far too many years for public officials, scientists, and the community to fully realize what GE and Monsanto knew from the very beginning: that PCBs—the man-made “miracle” chemical Monsanto provided to make anything and everything from electrical transformers, capacitors, carbonless copy paper, adhesives, fluorescent light ballasts, caulk, even chewing gum for a while—were toxic time bombs. As they leaked or were dumped, those PCBs and PCB-contaminated materials poisoned many of those who worked with them or the fish and birds who ingested them.
Year after year, they leaked and were dumped, volatilizing up into the air stream, bio-magnifying as one poisoned species was eaten by another, until today there is no one walking the Earth without PCBs in their blood and fat cells. Species as varied as eagles, the polar bears of the Arctic, and penguins of Antarctica are now poisoned with PCBs.
Lee describes how several developments set the stage for their lawsuit:
In early 2023, cases filed across this country against Monsanto for contamination of water-ways made the Town of Lee aware for the first time that Monsanto was jointly liable with GE for PCB related damages … Cases and settlements for contamination of water-ways mostly filed by attorney generals of states like Oregon and Pennsylvania against Monsanto provided The Town with a flood of internal Monsanto documents available in the dockets of the cases … On November 10, 2023, the Town in good faith provided documentation to GE that would allow GE to seek compensation from Monsanto for all monies it had spent and was about to spend under CERCLA Orders for the dredging of the Housatonic and Hudson Rivers … (Emphasis added.)
I have previously written on the critical revelations about what the EPA in 1975 referred to as “the degradation of the waters of the Escambia Bay, Florida … exemplified by massive fish kills, abrupt declines in commercial and sports fisheries and waters closed to body contact sports,” resulting from the leak of PCBs from Monsanto’s Alabama factory. This leak provided Monsanto the first undeniable proof that their PCBs attached themselves to sediments and, rather than flow unimpeded to the sea, were subsequently taken up by aquatic life, posing a continuing danger. Lee transposes this information about Escambia to what was happening as GE’s PCBs were leaking into the Housatonic from its Pittsfield transformer divisions.
Lee’s letter of November 10, 2023 suggests ways GE might productively use this information about Escambia:
The basis for GE’s possible action against Monsanto was Lee’s assumption that GE did not know that in 1968 Monsanto learned through a ‘negligent event’—Monsanto’s words —that PCBs in the Hudson and Housatonic River did not flow with water currents to the Atlantic … GE’s lack of response to Lee’s generous letter generated the Town’s interest and sought from lawyers associated with similar cases further documentation on the matter … On December 15, 2023, the Town was provided with the afore mentioned contract between GE and Monsanto.
As scientists began to catalog what was happening as Monsanto’s PCBs became “ubiquitous,” documenting the damage caused by them, companies reliant on them scrambled to make as much money as they could in the short run. Instead of actively working, along with their equally responsible customers, to mitigate the now undeniable danger, the execs and attorneys at Monsanto crafted a contract to protect their bottom line. They insisted their customers sign Special Undertaking Agreements (SUA) that stipulated that, in return for continuing to receive more PCBs, their customers would “defend, indemnify, and hold harmless Monsanto … from and against any and all liabilities, claims, damages, penalties, actions, suits, losses, costs and expenses arising out of or in connection with the receipt, purchase, possession, handling, use, sale, or disposition of such PCB’s [sic] by, through or under Buyer, whether alone or in combination with other substances, including, without implied limitation, any contamination or adverse effects on humans, marine and wildlife, food, animal feed or the environment by reason of such PCB’s [sic].”
Meanwhile, as the clock was running out on their unregulated behavior, customers like GE greatly profited from Monsanto’s willingness to continue unimpeded to sell the great quantity of PCBs they required. Here is an accounting of the PCBs they sold from just 1972 to 1977:
According to Monsanto, GE was especially aggressive in advocating for its continued supply of PCBs:
On January 21-22, 1970, Old Monsanto representatives met with General Electric representatives in St. Louis, Missouri who advised Old Monsanto that without the continued manufacture and sale of PCBs for electrical applications in the United States, the domestic industry for certain electrical devices would shut down … (Emphasis added.)
Monsanto notes:
[P]rior to entering into the GE Special Undertaking Agreements, Old Monsanto advised GE to keep PCBs well-contained and to exercise the highest degree of control in its storage … The Sales Contract for PCBs between Old Monsanto and GE for the period July 1, 1971 to June 30, 1972 included the following statement: It is understood that the products sold hereunder contain polychlorinated biphenyls, which some studies have shown may be an environmental contaminant. Buyer agrees to use its best efforts to prevent such products from entering into the environment through spills, leakage, use, disposal, vaporization or otherwise. (Emphasis added.)
What is clear though is that despite all the knowledge GE had gained about the toxic effects of PCBs, if GE had to sign the SUA and pledge to indemnify Monsanto in order to keep using their PCBs, well, so be it.
It is the greed and carelessness revealed yet again in these SUAs, which has prompted cities, states, workers, their families, and even school teachers working in PCB-contaminated school buildings to seek a delayed justice of sorts and successfully sue. And Lee has learned much from those lawsuits.
Ironically, now that Monsanto’s monstrously large bill has come due, none of the companies seem willing to honor their SUAs. So, after decades of a remarkably profitable confederation, Monsanto has resorted to the court system to force their customers to pony up for their billions they have spent and expect to spend in the future. And so a very annoyed Monsanto has chosen to reveal many of their shared secrets.
Lee regards its newly acquired knowledge of this contract as critical to its lawsuit: “The statute of limitation of the Town of Lee against Monsanto and GE for intentional infliction of harm to humans and the environment begins to run on December 15, 2023 the date Lee obtained the Monsanto-GE contract.”
The Lee lawsuit makes the case that Monsanto and GE failed to “prevent such products from entering into the environment” in multiple ways, demanding that they take responsibility for the contamination that threatens their community:
While Lee understands it can no longer legally contest the CERCLA cleanup decision, it argues:
The Settlement Agreement does not prevent The Town of Lee from seeking monetary compensation from GE and Monsanto for the damages that PCBs have inflicted on the Town and its residents … Monsanto’s foreseeability standards establish that as soon as Monsanto learned that PCBs dumped in water ways did not flow with the water to the sea— as all other chemicals did— it had the immediate responsibility to notify all users of PCBs—and the entire world—of this unique property of PCBs … Monsanto is jointly liable with GE for the consequences of PCBs dumped in the River by GE … One consequence of the contamination of the River with PCBs is the massive PCB dump to be built in Lee …
Lee quotes from the EPA’s letter to its attorney, Cristobal Bonifaz, noting a cleanup timetable of 13 years, with 47,000 truck trips of excavated contaminated soil and sediment to the Lee dump, which will cover 20 acres, with a capacity of 1.3 million yards or 1.3 million tons. Lee refers to video interviews I conducted with GE Manager of Tests at Power Transformer Ed Bates:
Ed Bates of GE has estimated that GE dumped 1.5 million pounds of PCBs into the River between 1930 and 1979 … Thus the poundage of PCBs that will be left on the River after GE satisfies the requirements ranges from 500,000 to 1.3 million pounds which are damaging to Lee and its residents … Regardless whether PCBs in the River amount to 1.5 million or 600,000 pounds the poundage to be removed from the River is merely 100,100 pounds.
Lee claims:
Monsanto … will remain liable to the Town of Lee for the PCBs left in the River before and after the PCB dump is constructed for the damages that exists now, the damages that will remain after the CERCLA Order is compiled by GE, and the damages the dump will generate to Lee and its residents for years to come. (Emphasis added.)
Lee explains:
EPA, GE, the City of Pittsfield and the towns of Lee, Lenox, Stockbridge, Great Barrington, Sheffield, the Audubon Society and others entered into an agreement not to appeal the CERCLA Order issued by EPA in 2022 in exchange for 62 million dollars to be paid by GE to the participants … There is nothing in the plain reading of Settlement Agreement that prevents Lee from filing this lawsuit for damages against GE and Monsanto for the damages these corporations have inflicted on the Town of Lee and its residents.
The Court of Appeals upheld the CERCLA Order. (Housatonic River Initiative v. United States EPA, 75 F.4th 248; 2023 U.S. App. Lexis 18977 July 25, 2023) … This action does not, cannot, and will not, interfere with the CERCLA Order or the Settlement Agreement … The compensatory and punitive damages Lee is seeking from Monsanto and GE are a consequence of the intentional tort committed by GE and Monsanto as per GE-Monsanto Contract of January 31, 1972 … Monsanto knew that PCBs were toxic to humans and the environment and communicated this fact to GE under the terms of the contract executed between GE and Monsanto (DJ-20):
Buyer [GE] acknowledges that it is aware and has been advised by Monsanto that PCB’s [sic] tend to persist in the environment; that care is required in handling, possession, use and disposition; that tolerance limits have been or are being established for PCBs in various food products.
Monsanto has therefore adopted certain restrictive policies with respect to its further production, sale and delivery of PCB’s [sic] including the receipt of undertakings from its customers as set forth below, and Buyer is willing to agree to such undertakings with respect to sale and/or deliveries of PCB’s [sic] by Monsanto to Buyer.
Accordingly Buyer thereby covenants and agrees that, with respect to any and all PCB’s [sic] sold or delivered by or on behalf of Monsanto to Buyer after the date hereof and in consideration of any such sale or delivery, Buyer shall defend, indemnify and hold harmless Monsanto, its present, past and future directors, officers, employees and agents from and against all liabilities, claims, damages, penalties, actions, suits, losses, costs and expenses arising out of or in connection with the receipt, purchase, possession, handling, use, sale or disposition of such PCB’s [sic] by, through or under Buyer, whether alone or in combination with other substances, including, without implied limitation, any contamination of or adverse effect on humans, marine and wildlife, food, animal feed or the environment by reason of such PCB’s [sic]. (DJ-20 Emphasis here only).
The lawsuit continues:
Monsanto sold PCBs under the terms of this contract and GE continued to profit from the use of PCBs knowing that PCBs were toxic to humans and the environment. Both companies carried this behavior without justification other than making money … It was less expensive to GE to pay damage claims filed by humans and for themselves and their environment than to profit from the sale and use of PCB …. Monsanto might have overreached, however, as evident from claims of fraud made by a customer, in identical position as GE, for Monsanto’s lack of total disclosure under the terms of the afore mentioned contracts between Monsanto and Buyers …
Here is an excerpt from Magnetek lawsuit against Monsanto:
Lee continues:
The 2022 CERCLA Order includes construction of a PCB dump in Lee the poorest town in the region … The PCB dump could have been created within the confines of the other affected towns; Lenox, Great Barrington, Sheffield or Stockbridge, however these towns are wealthy and could afford to fight the issue in Courts for years, which Lee could not afford …
The decision by EPA to order the construction of the PCB dump in Lee saves GE the expense of transporting dredged PCBs to an out of state accredited toxic dump as EPA’s scientists and engineers recommended in an initial CERCLA Order issued by EPA in 2016 …
Monsanto manufactured all PCBs currently in the River and is jointly liable with GE for PCB contamination of the River, and the consequences of the contamination … This lawsuit against Monsanto and GE does not, cannot, and will not, interfere with the CERCLA Order or the Settlement Agreement … The Town of Lee is seeking from Monsanto and GE adequate compensatory and punitive damages for the harm both companies intentionally caused to Lee by creating profits for their shareholders without justification … Those damages include eliminating the use of the River for all Town’s residents for years to come …
The Town Lee is seeking, as parens patriae on behalf of its residents adequate compensatory and punitive damages to be determined by a jury for the catastrophic disaster Monsanto and GE have caused to Lee … (Emphasis added.)
I personally believe that, given the failures of the EPA and the Rest of River Committee to secure a fishable, swimmable river and their refusal to demand GE treat its PCB contamination instead of burying it, along with the subsequent decision of the First Circuit Court of Appeals to rely on their misplaced confidence in the EPA, this lawsuit is the best attempt to adequately compensate and protect the people of Lee and Berkshire County and our environment.
The lawsuit makes several points about the limitations of CERCLA:
The CERCLA Order of 2022 cannot and does not require Monsanto and GE to pay damages to the Town for the intentional actions of GE and Monsanto that have caused and will continue to cause harm to humans and the environment … EPA has no jurisdiction over Monsanto as Congress restricted EPA jurisdiction to the immediate actor that contaminated the soil and the River– in this case GE …
The task imposed on EPA by CERCLA turned out to be impossible given the nature of forever life of PCBs as Monsanto learned in 1968 from an admitted negligent event … The CERCLA Order of 2022 is at best a weak compromise of what EPA could do under the circumstances to reduce the risks to humans and the environment … (Emphasis added.)
Lee asserts “Monsanto’s Joint Liability with GE for the Contamination of the River and its floodplains”:
In so many ways, Lee’s lawsuit, 1,782 pages long, presents a voluminous history of Monsanto’s experience with PCBs, including multiple internal documents gleaned from a variety of witness statements taken in other lawsuits. Many of these documents are damning, providing evidence that, as the years went on, the company became more and more aware about how toxic their PCBs were.
Even after there was indisputable proof of its toxicity, GE insisted for years that it needed to continue to use Monsanto’s PCBs, drafting the February 1972 document “The Role of Polychlorinated Biphenyls in Electrical Equipment,” which argued:
Askarel transformers already installed cannot be replaced by oil transformers of equivalent rating without major construction changes in buildings and associated equipment required to compensate for the safety features of the askarel units …
The principal alternative to askarels for capacitors is mineral oil, but such replacement would return capacitor technology to its pre-1932 level and would necessitate redesign and replacement of such widely used equipment as fluorescent light fixtures and racks for power and induction heating capacitors, which could not now accommodate the increased size of oil capacitors while maintaining their present ratings. (Emphasis added.)
Then the EPA issued its May 1972 report, “PCBs And The Environment,” which declared:
PCBs have been used so widely over such a long period that they are ubiquitous. Even a total cessation of manufacturing and use of PCBs would not result in the rapid disappearance of the material, and ultimate disappearance from the environment will take many years … The use of PCBs should not be banned entirely. Their continued use for transformers and capacitors in the near future is considered necessary …
But, as Lee reminds us, the EPA didn’t have all the facts:
In 2023 Monsanto filed in another Federal Court a 1976 EPA document that stated that only 5% of the transformers in 1976 contain PCBs. (Monsanto v. General Electric 4:23-cv-00204 Doc. #. 1-3 Filed 02/20/23 Page ID # 4362). Clearly elimination of the 5% of the transformers manufactured in the United States in 1976 would not have disrupted electrical services in the United States as General Electric could easily have switched from PCBs to Mineral Oil on its 5% PCB transformer market as it did when Monsanto stopped selling PCBs to General Electric in 1977 or in 1979 when PCBs were banned by EPA …
Now onto Defendant General Electric Company’s Notice of Removal:
Lee previously signed onto a Settlement Agreement in 2020 with GE, EPA, and many of the other surrounding greater-Berkshire municipalities in which all agreed to refrain from appealing the validity of the 2022 CERCLA Order in exchange for GE’s payment of $63 million dollars to be divided among those towns as compensation for the affected areas … Despite that, the towns appealed the Settlement Agreement’s validity, which was upheld by the First Circuit …
Given that Lee now has no legal ability to challenge the terms of the 2022 CERCLA Order or the actions GE has been ordered to take pursuant to it, it brings this action for damages, contending the actions it can no longer challenge have damaged Lee and its residents and that those damages are ongoing … This lawsuit thus directly challenges actions taken under the direction of a federal officer—EPA—and is in direct conflict with that federal officer’s determination that the actions challenged by Plaintiff’s Complaint ‘are protective of human health and the environment with respect to the areas addressed’ and that ‘no further response actions for the areas addressed . . . are necessary to protect human health and the environment.’ … Accordingly, this is a textbook case for federal officer removal under Section 1442 … GE states as follows: GE Manufactured Products Containing PCBs for the United States Government. (Emphasis added.)
GE continues:
As a federal defense contractor, GE manufactured large quantities of PCB-containing products for purchases by numerous agencies of the federal government. GE was supplying the military with capacitors containing PCBs even before the United States entered World War II … In 1970 alone, the General Services Administration, Department of the Interior, United States Army, United States Navy, and other branches of the federal government purchased at least 6,750 pounds of Pyranol, meaning that each of these federal agencies had previously purchased numerous GE PCB-containing transformers that required replacement Pyranol … In 1971, the federal government again purchased more than 6,000 pounds of Pyranol …
Contrast the close to 60 million pounds of PCBs GE purchased during the six years between 1972 and 1977 with the very small quantity they sold to agencies of the U.S. government. Nevertheless, GE claims a far different relationship with the government than with the other customers who paid for those 60 million pounds of PCBs:
I don’t know about you, but I am deeply outraged by GE’s motion to remove. It is the workers of Berkshire County—did you know that GE ran a special train to transport workers from North Adams to its Pittsfield factories?—and the thousands of GE employees who created a vibrant community in Pittsfield and in the process made GE its billions. Now GE wants to keep them and all those who live close to the Housatonic as far away from the courtroom as possible.
No lawyer here, but how, as GE argues, does the fact that the EPA and GE have finally negotiated a cleanup agreement—that mitigates only a portion of the damage—have to do with the reality that, ever since the early 1930s, GE has negligently allowed massive amounts of Monsanto’s toxic PCBs to leak? Or that those prodigious underground plumes of their PCBs infiltrated Silver Lake and the Housatonic, and along with their never-ending dumping, GE contaminated large sections of our Berkshire community?
Yes, the EPA regards the actions taken by GE since the 2000 Consent Decree as “protective of human health and the environment,” and while I imagine expert testimony might influence an objective jury to find otherwise, none of this changes the reality of the overwhelming damage suffered by the community that falls outside the realm of the U.S. environmental regulations of CERCLA and EPA’s mandate, or even the relatively small award of $15 million in Natural Resource Damages funds. Not to mention that, despite the EPA’s agreement with GE, large amounts of PCBs will remain, continuing to inflict damage on our community and the environment in the future.
GE offers several justifications for its motion to remove the Lee lawsuit: “the necessity of PCBs, the federal government mandated that GE use PCBs in the products GE manufactured and the federal government purchased …” GE then turns to its reliance on CERCLA:
The Consent Decree required EPA approval for each aspect of GE’s remediation that Plaintiff alleges was inadequate, including the Upland Disposal Facility … The 2022 CERCLA Order is part of the work GE continues to do in furtherance of the remediation effort of the affected areas, and directly relates to the claims asserted against GE by the Plaintiff …
GE then argues:
REMOVAL IS PROPER UNDER 28 U.S.C. § 1442(a)(1 … [Which] Allows a Company Acting Under the Authority of a Federal Officer to Remove Actions to Federal Court … Private entities, such as government contractors, ‘fall within the terms of the federal officer removal statute . . . when the relationship between the contractor and the Government is an unusually close one involving detailed regulation, monitoring, or supervision.’
I go into this issue in greater depth in “Monsanto v. General Electric — Round Three,” including Monsanto’s very persuasive response to GE’s attempt to remove their case from state court to federal court in Missouri:
Monsanto continues:
In other cases, Monsanto has attempted to establish removal jurisdiction in this Court for lawsuits involving polychlorinated biphenyls (‘PCBs’) pursuant to the federal officer doctrine. The three different judges in this district who reviewed those removals each found the evidence presented by Monsanto was insufficient to establish the ‘acted under’ and ‘causal connection’ elements of federal officer removal jurisdiction … Whether correctly decided or not, those three decisions are on point and should foreclose GE’s attempt to remove this case …
In those cases, Monsanto argued removal was proper under Section 1442(a) because Monsanto manufactured and sold PCBs at the express direction, supervision, and command of the federal government … Here, GE argues it is entitled to remove under Section 1442(a) because it sold PCBs and PCB-containing products (capacitors and transformers) to the federal government and did so under the supervision and control of the federal government … Similar to what Monsanto relied on, GE relies on invoices showing sales of PCBs to the federal government … And like Monsanto, GE also relies on the government contractor defense and federal preemption to satisfy the colorable federal defense element … In Bailey, Kelly, and Burford, the court found the evidence and arguments made by Monsanto to be insufficient to support removal under Section 1442(a) …
Indeed, even if the Court were to assume that all of GE’s “illustrative examples” actually represent direct sales to the government by GE (as opposed to sales by Monsanto (see n.7, supra)), those purported sales represent only 0.0074% of the total PCBs GE purchased from Monsanto between 1956 and 1977 …
To conclude, although Monsanto respectfully disagrees with the findings and holdings in Kelly, Bailey, and Burford, those decisions represent a unified view of the law in this district and should be applied to GE’s removal in this case …
None of GE’s explanations change the reality that regardless of who their customers were, they were negligent when it comes to handling of PCBs. And while it is one thing for me to make that charge, what about when it comes from their confederate:
On April 12, 2024, the town of Lee responded to General Electric Company’s Notice of Removal, taking the opportunity to notify the court of GE’s unsuccessful attempt to raise similar issues in Missouri and the decision of Judge Autry supporting Monsanto’s move to keep the case in state court. Utilizing many internal documents, Lee’s response provides a detailed history of Monsanto’s decades-long knowledge that PCBs were toxic. Lee writes:
Monsanto has apparently failed to introduce any evidence in the myriad of lawsuits it is defending in this country that it never publicized to the world or to any of its customers including GE that Aroclors 1254 and 1260 used in transformers had the unique newly discovered property—as determined by the negligent leak into the Escambia River—of not flowing with rivers to the sea—as did all other chemicals dumped into the rivers by manufacturing industries—but to remain imbedded in the sediments of the rivers. (Monsanto’s DJ-11 Chem. Week Article).
Monsanto knew that GE’s transformer facility was located in Pittsfield adjacent to the Housatonic River … Monsanto knew or should have known that GE disposed of used PCBs by dumping them into the Housatonic River or by burying them in landfills created by GE in Western Massachusetts … GE dumped into the Housatonic or buried in landfills more than 1.5 million pounds of PCBs between 1930 and 1979 according to Ed Bates of General Electric … EPA’s estimate of the amount on the River sediments is between 100,000 and 600,000 pounds …
Monsanto has advocated standards of foreseeability in a case winning Summary Judgment Motion against Westport a Massachusetts Town in 2017. (Monsanto’s Memorandum of Law in Support of its Motion for Summary Judgment in Town of Westport v. Monsanto et al., C.A. No. 14-CV 12041. DJ-14). To establish a failure-to-warn claim, the plaintiff must establish that the product is unreasonably dangerous because foreseeable users were not adequately warned of the foreseeable risks of harm associated with its use. Evans, 465 Mass. at 439. Massachusetts has rejected any hindsight analysis of the duty to warn. Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 23 (1998). The manufacturer’s duty is limited to warning of dangers that were reasonably foreseeable at the time of sale, or could have been discovered by way of reasonable testing prior to marketing the product. Id. at 22-23. The failure to warn under breach of warranty is judged by the reasonableness of the defendant’s actions under the circumstances. Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 637 (2001). Because the alleged harm at issue in this case was not reasonably foreseeable or discoverable in 1969, no duty to warn of the alleged risk arose as a matter of law. (DJ-14 at p. 6-7.)MF-80. Monsanto’s foreseeability standards establish that as soon as Monsanto learned that PCBs dumped in water ways did not flow with the water to the sea— as all other chemicals did— it had the immediate responsibility to notify all users of PCBs—and the entire world—of this unique property of PCBs. (Id).
Monsanto and GE will remain liable to the Town of Lee for the PCBs left in the River before and after the PCB dump is constructed for the damages that exists now, the damages that will remain after the CERCLA Order is compiled by GE, and the damages the dump will generate to Lee and its residents for years to come …
Those damages include eliminating the use of the River for all Town’s residents for years to come … The Town Lee is seeking, as parens patriae on behalf of its residents adequate compensatory and punitive damages to be determined by a jury for the catastrophic disaster Monsanto and GE have caused to Lee.
Many of us have become used to hearing the expression “forum shopping” and hearing analyses of how anti-abortion activists chose a sympathetic conservative judge in a small district of Texas to bring its case against the use of mifepristone. It seems clear to me that GE does not want a trial anywhere near the town that has been injured or the river that has been destroyed. It seems to me that GE does not believe that the people of Berkshire County are able to do their duty as jurors and honestly and objectively and without prejudice evaluate the evidence put before them.
I urge Berkshire County District Attorney Timothy J. Shugrue to act to protect the interests not only of Lee, but of all the citizens of the county who treasure our Housatonic River. I urge District Attorney Shugrue to join Lee in its lawsuit against Monsanto and GE.
