The recognition of necessity sometimes requires a level of transparency that is both unfamiliar and highly inconvenient. The billions of dollars in court findings—many already spent and others anticipated—has forced Monsanto to expose many of its secrets in hope that our court system will force companies like GE, Magnetek, Westinghouse (now Paramount Global), KYOCERA AVX (the successor to Aerovox Corporation), The Gillette Company LLC, and others to pony up billions of their own money to reimburse Monsanto and set aside funds for potential future losses. (See “Monsanto v. General Electric — Round One.”)
For years, companies throughout America took Monsanto’s Aroclors and added to or modified them to make significant fortunes. They were used, as the EPA notes, in a wide variety of applications that needed PCBs:
- Transformers and capacitors
- Electrical equipment, including voltage regulators, switches, re-closers, bushings, and electromagnets
- Oil used in motors and hydraulic systems
- Old electrical devices or appliances containing PCB capacitors
- Fluorescent light ballasts
- Cable insulation
- Thermal insulation material, including fiberglass, felt, foam, and cork
- Adhesives and tapes
- Oil-based paint
- Caulking
- Plastics
- Carbonless copy paper
- Floor finish
As I have written before, our environmental regulators—here in Massachusetts, it has been the Department of Environmental Quality and Engineering (DEQE), then the Department of Environmental Protection (DEP), and nationwide, the EPA—have been playing catch-up with contamination for years, decades, as polluters like Monsanto and GE insisted their PCBs were safe and controlled. So the EPA first had to accurately delineate the PCB problem then develop strategies to confront it. In the midst of escalating worldwide concern with PCB contamination, in September 1971, the U.S. government convened an Interdepartmental Task Force on PCBs and, in May 1972, issued its “Polychlorinated Biphenyls and the Environment” report.
To be fair, in its First Amended Petition against Magnetek Inc. and General Electric Company, Monsanto accurately depicts the EPA’s ambivalence, emphasizing how the EPA acceded to the need to maintain Monsanto’s production of PCBs to ensure the continued integrity of our electric grid:
It is pretty clear that, for the longest time, Monsanto and their customers made common cause as they made billions of dollars all the while allowing their toxic chemicals to poison the land and poison the people. What Monsanto doesn’t say in their lawsuit is that when the world began to learn the truth, they and GE and the other large users of PCBs strategized together to sell and use PCBs as long as possible. In service of that cause, they together made the most convincing case to the EPA that at that time: that there were no practical alternative to PCBs and that there would be drastic economic consequences if the government immediately banned them. Additionally, Monsanto and its customers assured the government they “understood the need for unusual protective measures to prevent their release into the environment.”
GE drafted and circulated a persuasive document in February 1972, “The Role of Polychlorinated Biphenyls in Electrical Equipment,” arguing:
1. 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. For certain applications and locations, dry type transformers can replace askarel transformers, but not without reduction in system reliability.
2. 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.
In fact, all of the parties in this legal battle did extensive lobbying in Washington and won a significant victory reflected in the guidance that the Task Force delivered in 1972.
But, in fact, even that wasn’t enough for GE. Despite the now impossible-to-deny appreciation that PCB discharges were irrefutably endangering fish and birds and other wildlife, GE rigorously fought any reasonable attempt by federal regulators to limit the post-1972 amount of PCBs that left their plants and entered the wastewater stream and contaminated adjacent waterways. Mr. George B. Farnsworth, vice president and general manager of General Electric’s Electronic Components, Business Division, offered the EPA “Testimony on Behalf of the General Electric Company as an Objector to the Proposed Toxic Effluent Standards for PCBs – 40CFR 129.” Considering the 1972 decision of the Task Force, GE declared:
In view of the above actions of the Federal government, and in view of direct representations to the same effect by EPA staff, we had every reason to anticipate that the proposed effluent standards for PCBs would be ‘attainable’, and that they would permit industry to continue to operate plants producing PCBs and plants producing PCB transformers and capacitors.
Instead, we were confronted on December 27, 1973, with a proposed standard which, if promulgated, would not be ‘attainable’ and would therefore require shutdown of operations involved with these important products. To illustrate, our engineers tell me that the application of the proposed standard to one of our plants would mean that they would be allowed to discharge into the river one-half of one drop of PCB per day. A single employee, washing his hands at a sink connected to our plant drain, could thus place the entire operation in violation of the law!
It is important to remember that we are not dealing here with some new, highly toxic, military nerve gas or the like, but with a well-known, stable engineering material, with which we have been building safe and reliable electrical equipment for the past forty years. We have found no evidence during all these years that any employee was made seriously ill by exposure to PCBs or that any fish kills occurred because of same. We are forced to conclude that, somewhere in the process of developing the proposed standard, perspective has been lost and priorities have become confused.
Is it remotely possible that nobody told Mr. Farnsworth about all the evidence accumulated from the 1930s on chloracne and bladder and liver disease experienced by their workers, the studies in Sweden in the late 1960s, or the Monsanto PCB leak at Escambia? As for Esambia, by 1975, the EPA had studied and described the effects of the leak as “exemplified by massive fish kills, abrupt declines in commercial and sports fisheries and waters closed to body contact sports.” Somehow, there seem to have been no health problems or fish kills in Mr. Farnsworth’s GE universe.
But back to the central claim Monsanto makes in its lawsuit: The defendant companies, in return for a continuing supply of their PCBs, signed Special Undertaking Agreements pledging:
To 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].
First off, because the company changed hands over recent years, Monsanto clarifies its various corporate identities
New Monsanto did not manufacture or sell PCBs. New Monsanto was spun off from Old Monsanto in 2000. In 2008, New Monsanto and Solutia entered into the Amended and Restated Settlement Agreement in connection with Solutia’s Chapter 11 reorganization. As part of that Amended and Restated Settlement Agreement, New Monsanto agreed to assume financial responsibility for certain Legacy Tort Claims (which include claims for property damage, personal injury, products liability or premises liability or other damages arising out of or related to exposure to PCBs) and Environmental Liabilities related to Legacy Sites. Old Monsanto executed a Power of Attorney in favor of New Monsanto, which grants New Monsanto authority to take ‘all actions’ over certain claims, including the PCB Lawsuits, and provides that New Monsanto is Old Monsanto’s ‘true and lawful agent and attorney.’
As for inconvenient revelations, in hopes of convincing the court to enforce its need for reimbursement, Monsanto details the wide variety of legal claims they have faced, and still face: “The PCB Lawsuits can generally be grouped into four categories: (1) The Food Chain Cases; (2) The Water Cases; (3) The School Cases; and (4) The Occupational Cases.”
Monsanto provides a rare and chilling look at the extensive damage they and their customers have inflicted on the country, on us all. They clinically, bloodlessly detail the destruction:
A. The Food Chain Cases – Plaintiffs were named as defendants in a series of personal injury cases in which the plaintiffs contended that they suffered from various types of Non-Hodgkin’s lymphoma as a result of non-employment, environmental and food chain exposure to PCBs … Plaintiffs in the Food Chain Cases alleged that PCBs are now ubiquitous in the environment because, inter alia, the products into which PCBs were incorporated by Old Monsanto’s customers permitted their release into the environment. Plaintiffs also alleged that PCBs were dumped into the environment by Old Monsanto’s customers and the end-users of various PCB-containing products.
Plaintiffs in the Food Chain Cases alleged that it is impossible to ‘disaggregate’ the environmental PCBs to which they were exposed and which they alleged caused their injuries or determine their more particular source. Accordingly, the Food Chain Plaintiffs alleged generally that their injuries were caused by their exposure to the combination of PCBs released into the environment … The Food Chain Plaintiffs sought to impose liability on Plaintiffs for manufacturing any and all PCBs, including those purchased by Defendants and their predecessors before and after they signed the Special Undertaking Agreements …
The Food Chain Cases included approximately 700 plaintiffs … The Food Chain Cases were filed in state court in Los Angeles County, California, and in state and federal courts in St. Louis, Missouri … In September 2016, Monsanto agreed to pay a significant amount to settle all of then-pending Food Chain Cases … (Emphasis added.)
I love the word “disaggregate”; it is such a fancy way of acknowledging that PCBs are now anywhere and everywhere. It is such a nondescript way to say there is no practical way as yet to determine whose PCBs—and/or what vintage or manufacture date of PCB production—may have poisoned Dick or Jane or their baby and/or when exactly this leak or that leak did the most damage to the fish, the ducks, the cows and their milk. It seems to me that blame—like the PCBs—is, as they like to say, “ubiquitous.”
Onto to the poisoning of our rivers and bays:
B. The Water Cases – Plaintiffs have been named as defendants in a series of lawsuits in which cities and various municipal agencies are alleging that the Plaintiffs should bear some cost for water cleanup and wastewater permit costs due to PCB contamination (the ‘Water Cases’) …
Plaintiffs in the Water Cases allege generally that PCBs have entered the subject body of water through various sources, including improper disposal by Old Monsanto’s customers, PCB releases from products manufactured by Old Monsanto’s customers, and leaching from landfills. “Plaintiffs in the Water Cases allege that PCBs easily migrate or leach out of their original source material or enclosure and that ‘PCBs can also escape from totally-enclosed materials (such as light ballasts) and … escape into the environment.’ See San Diego Unified Port District, et al. v. Monsanto Company, et al. … (Emphasis added.)
Allow me to provide a local example: For decades, the City of Pittsfield made its landfill available to GE—without a fee. Tractor-trailer loads of PCB-contaminated Fullers Earth (a kitty-litter-like substance used to filter PCB oil and absorb continuing spills) left GE and were dumped day after day at the city dump. These barrels leaked over time, and the toxic soup made its way into the ground water and eventually contaminated the large aquifer across the road below Berkshire Sand and Gravel. MassDEP finally forced GE to clean up some of the worst contamination. Here is just a fraction of what was dug up and placed in protective barrels:
Monsanto continues:
PCBs purchased by Defendants—both before and after the Special Undertaking Agreements were executed—are part of the combined environmental load of PCBs alleged to have contaminated the waterways at issue in the Water Cases … The Water Cases seek to impose liability on Plaintiffs for manufacturing any and all PCBs, including those purchased by Defendants or their predecessors before and after they signed the Special Undertaking Agreements … In June 2020, Plaintiffs agreed to pay substantial sums to settle Water Cases brought by certain municipal entities. Plaintiffs entered into separate agreements with the Attorneys General of New Hampshire, New Mexico, Ohio, Washington, D.C., and Washington to resolve Water Cases brought by those states.
C. The School Cases – Plaintiffs have been named as defendants in numerous cases, including multiple cases filed after August 2018, in which it is alleged that the Plaintiffs should bear some cost of cleanup and/or rebuilding of schools due to alleged PCB contamination (the ‘School Cases’). Plaintiffs in the School Cases allege that PCBs were used in building products such as electrical equipment, lighting ballasts and other materials that were used in the construction of school buildings.
Defendants, or their predecessors, manufactured PCB-containing lighting ballasts and other electrical equipment using PCBs purchased both before and after they signed the Special Undertaking Agreements … In separate trials ending in June and November 2021 and June 2022, juries in Seattle awarded substantial damages to three groups of plaintiffs in the Sky Valley School Cases against Old Monsanto. During at least one of the trials, plaintiffs introduced evidence that a source of PCBs at the Sky Valley Education Center were light ballasts manufactured by UMC …
D. The Occupational Cases – Plaintiffs have been named as defendants in several occupational exposure cases (the ‘Occupational Cases’) … The plaintiffs in the Occupational Cases allege that they were exposed to PCBs manufactured by Plaintiffs during the course of their employment through various means, including leaks from light ballasts. The plaintiffs further allege that, as a result of this exposure, they suffered from various illnesses and personal injuries.
In Lamkin, et al. v. Monsanto Company, et al., the plaintiff alleged that he developed cancer as a result of his exposure to PCBs. Case 16-0563, Suffolk County Superior Court, Massachusetts. Plaintiff alleged that he was exposed to PCBs during the course of his employment, from 1992 through 2008, working with power transformers and other electrical equipment … In or around December 2021, the parties to Lamkin entered into a settlement agreement …
Monsanto then moves on to focus on the culpability of each of the defendants. First off, Monsanto makes this telling point: “General Electric pioneered the use of PCBs in electrical equipment. By 1936, General Electric’s Frank Clark held all initial patents for PCB dielectric applications as well as the transformers and capacitors that use PCBs …”
Monsanto emphasizes:
Prior 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 of PCBs. For example, in February 1970, Old Monsanto sent a letter to GE alerting GE to potential problems of environmental contamination relating to PCBs. In addition, in January 1970, Old Monsanto representatives met with GE representatives in St. Louis for a discussion of environmental safety aspects associated with the use of PCBs. Old Monsanto representatives met with GE representatives again in December 1971 to discuss environmental issues with regard to PCBs and the Special Undertaking Agreements. Old Monsanto sent another letter to GE on or about January 3, 1972 reiterating that PCBs ‘are not readily biodegradable’ and that GE should ‘take every precaution to prevent any entry of polychlorinated biphenyls into the environment through spills, usage, leakage, disposal, vaporization or otherwise.’ (Emphasis added.)
I need to remind you that what follows was not written by me or by public critics like the Housatonic River Initiative (HRI). HRI recently unsuccessfully sued to force a more comprehensive cleanup of the Housatonic, urging the adoption of alternative remedial technologies to treat the PCB contamination and opposing the EPA and GE’s plan to dump PCBs from the river in a massive landfill in Lee. What follows below is from Monsanto’s lawsuit:
This is critical:
Defendants were aware of the potential for PCBs to persist in the environment and of the need to use care in the use and handling of PCBs. Nevertheless, Defendants and their products have been a major source of environmental PCB contamination, and Defendants have released PCBs purchased both before and after signing the Special Undertaking Agreements into the environment. (Emphasis added.)
In my opinion, this is a far stronger judgment than ever expressed by our environmental regulators; I have never heard representatives of MassDEP or the EPA suggest that GE was aware of the ability of PCBs to persist and contaminate the environment; yet they carelessly dumped them nevertheless and/or allowed them to spill and leak from their factories.
“Caused” is the key word here. And again here: “The EPA has determined that years of General Electric’s use and disposal of PCBs at this facility caused extensive contamination around Pittsfield, Massachusetts as well as down the entire length of the Housatonic River …”
Even today, the EPA offers only a vague and unsatisfactory estimate of the extent of the PCB contamination of the Housatonic: “PCBs are present in large quantities in river sediment and floodplain soil; estimates range from between 100,000 to nearly 600,000 pounds of PCBs.”
Here is an illustrated map of PCB levels found in the river and floodplain in the area of the Decker Canoe Launch, which is accompanied by an explanation offered by Ed Garland of HydroQual at the EPA’s Housatonic River Mini Workshops:
Garland explains:
From these data, EPA learned that some riverbanks upstream of Woods Pond are not stable and are eroding. When banks erode, they put PCBs back into the water and the sediment bed. Riverbanks account for nearly half of all PCBs entering the River. The data show that the River floodplain is heavily contaminated with PCBs because when floods occur, PCBs move onto the floodplain. The data also show that PCBs are present throughout the riverbed at concentrations that vary widely over very short distances (i.e. feet). This means that PCB contamination is extensive and that there are no hotspots (small areas that are large PCB sources).
Neither the EPA nor GE has offered the public a detailed site-specific analysis of how much PCB-contaminated sediment will remain in the river system after their planned cleanup is complete.
Monsanto continues:
The EPA reported in 1976 that General Electric used more PCBs than any other company in the U.S. capacitor manufacturing industry … The capacitor industry alone generated over 3 million pounds of PCB waste annually, much of which previously ‘was not disposed of properly and thus entered the environment directly.
GE moved its capacitor division from Pittsfield in 1950 to Hudson Falls in New York. And as Monsanto notes, “General Electric also caused significant PCB contamination of the Hudson River, now one of the largest Superfund sites in the United States …”
As Monsanto reveals, we in Berkshire County are but one recipient of GE’s irresponsibility when it comes to the handling of PCBs:
General Electric also is responsible for PCB contamination around certain of its other facilities, both before and after January 1972, including, but not limited to facilities in: Washington, West Virginia; Shepherdsville, Kentucky; Moreau, New York; Rome, Georgia; Brandon, Florida; and Anaheim, California …
B. General Electric’s Refusal To Defend And Indemnify – Plaintiffs notified GE of the PCB Lawsuits, informed GE that the Special Undertaking Agreement applied to the PCB Lawsuits, and demanded that GE defend and indemnify Plaintiffs in the PCB Lawsuits through meetings and correspondence … As part of these meetings and correspondence, Plaintiffs provided GE with a complete list of all PCB Lawsuits, including case number, court, and date of filing.
On October 19, 2016, counsel for General Electric sent counsel for Plaintiffs a Letter rejecting Plaintiffs’ demand for indemnity and defense:
Timing is an issue raised again and again in the battles between Monsanto and its customers, and between its customers and the insurance companies they turned to for reimbursement for expenses regarding their use of PCBs.
Monsanto continues:
On April 29, 2022, counsel for Plaintiffs sent counsel for General Electric a letter recounting the parties’ prior correspondence and discussions regarding the GE Special Undertaking Agreement, summarizing the PCB Lawsuits, and tendering the defense and demanding indemnification of an additional Water Case. This letter emphasized that ‘time is of the essence … General Electric has refused Plaintiffs’ demands that General Electric assume the defense of the PCB Lawsuits and provide indemnification for amounts expended to resolve certain PCB Lawsuits …
VI. Defendants’ Individual, Joint, And/Or Collective Liability
Plaintiffs have incurred significant costs in defending the Food Chain Cases, Water Cases, School Cases, and the Occupational Cases, and will continue to incur significant costs defending the PCB Lawsuits in the foreseeable future … Many of the PCB Lawsuits remain pending. These cases include Water Cases filed by the Attorneys General of Oregon, Pennsylvania, Delaware, and Maryland, a new Water Case filed by the City of Los Angeles on March 4, 2022, and the Sky Valley School Cases (which involve more than 200 plaintiffs). The plaintiffs in each of the pending PCB Lawsuits seek significant damages from Plaintiffs …
Although each Defendants’ defense and indemnification obligations arise under separate Special Undertaking Agreements, those agreements are substantially similar, and, more importantly, each Defendant’s contractual obligations to defend, indemnify, and hold harmless Old Monsanto are nearly identical. Defendants have separately and individually agreed to insure the same risk and/or same liability or loss under nearly identical terms. Thus, each Defendant is individually, jointly, and/or collectively liable for the full amount of the defense costs incurred by Old Monsanto in the PCB Lawsuits, all amounts paid and/or agreed to be paid by Plaintiffs to resolve and/or settle the PCB Lawsuits, and the full amount of all judgments entered against Plaintiffs in the PCB Lawsuits.
For example, in the 2011 Nunn v. Monsanto case listed above, plaintiffs were five residents of Missouri and California who alleged that they developed non-Hodgkin’s lymphoma after being exposed to PCBs. Monsanto provides this excerpt from Lamkin v Monsanto, an example of PCB-Personal Injury cases:
If you have ever wondered about the PCB contamination of New Bedford Harbor on the other side of the state, Monsanto offers this quick summary:
From the 1940s until 1973, Aerovox and then AVX Ceramics used PCBs while manufacturing capacitors at a plant in New Bedford, Massachusetts on the shore of the New Bedford Harbor … During this time, disposal practices and operations at the plant caused contamination of soils, groundwater, surface water, and building materials and equipment at the plant. For example, PCBs were spilled upon receipt of large drums of PCBs at rail yards. Employees dumped defective capacitors containing PCBs outside the facility, and over time, the capacitors corroded and released PCBs into the environment. Upon information and belief, PCBs were also dispersed into the municipal sewer system. PCB vapor leached onto structures at the facility and waste that left the facility. PCBs were disposed of at local landfills and were also discharged into the New Bedford Harbor and contaminated the Acushnet River and Buzzards Bay …
If you change Aerovox to GE and capacitors to transformers, you have an accurate description of the “disposal practices and operations” at Power Transformer and how Pittsfield’s groundwater and multiple sites throughout the city were contaminated.
Monsanto continues:
After this contamination, the EPA detected PCB levels well above the safe levels for consumption in fish near the harbor. In 1983, the New Bedford plant and surrounding area was listed on the EPA’s Superfund National Priorities list. Also, in 1983, the Department of Justice and Commonwealth of Massachusetts filed lawsuits against AVX, seeking injunctive relief and recovery of cleanup costs resulting from Aerovox’s and AVX Ceramics’ release of PCBs. In 1989, AVX agreed to pay $2 million to settle these claims. In 2012, AVX agreed to pay $366 million in a supplemental settlement agreement for continued restoration work …
COUNT I: Breach of Contract against all Defendants (Refusal to Defend)
… Old Monsanto provided valuable consideration to Defendants, or their predecessors-in-interest, in exchange for their agreement to defend Old Monsanto in the PCB Lawsuits. For example, Old Monsanto agreed to continue, and did continue, to manufacture and sell PCBs to Defendants or their predecessors-in-interest until 1977 … Plaintiffs have performed all obligations and responsibilities required of them under the Special Undertaking Agreements.
The Special Undertaking Agreements are valid contracts that are enforceable against Defendants … Under the Special Undertaking Agreements, Defendants are obligated to provide a defense for Old Monsanto and its present, past, and future directors, officers, employees and agents in the PCB Lawsuits, including, but not limited to, payment of attorneys’ fees, expert fees, and all other costs and expenses incurred to defend Old Monsanto in the PCB Lawsuits …
COUNT II: Breach of Contract against all Defendants (Refusal to Indemnify) …
COUNT III: Declaratory Judgment against all Defendants (Contractual Duty to Defend)
… This Court has the power to grant a declaratory judgment concerning the rights and obligations of Plaintiffs and Defendants, pursuant to RSMo §§ 527.010, 527.020, and 527.030, because an actual controversy exists between Plaintiffs and Defendants concerning the parties’ respective rights and obligations under their respective Special Undertaking Agreements, including Defendants’ duty to defend Old Monsanto in the PCB Lawsuits …
Defendants’ refusal to satisfy their obligations to defend Old Monsanto and its present, past, and future directors, officers, employees and agents or pay the costs to defend Old Monsanto and its present, past, and future directors, officers, employees and agents in the PCB Lawsuits is contrary to the Special Undertaking Agreements and the law.
The harm to Plaintiffs if Defendants are allowed to avoid their obligation to defend Old Monsanto and its present, past, and future directors, officers, employees and agents in the PCB Lawsuits is sufficiently real and imminent to warrant the issuance of a conclusive declaratory judgment clarifying the legal relations of the parties. Without a declaration of rights, Plaintiffs will continue to incur attorney’s fees, expert fees and other costs and expenses in the PCB Lawsuits.
COUNT IV: Declaratory Judgment against all Defendants (Duty to Indemnify)
… Specifically, Plaintiffs request and are entitled to a declaration that Defendants have a duty to indemnify Old Monsanto and its present, past, and future directors, officers, employees and agents in all of the PCB Lawsuits, including but not limited to the settlement of some of the Food Chain Cases, the settlement of some of the Water Cases, and the judgments entered in the Sky Valley School Cases …
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter an order and judgment granting the following relief in Plaintiff’s favor and against Defendants:
A. Awarding Plaintiffs a sum greater than Twenty-Five Thousand Dollars ($25,000.00) reflective of the damages incurred by Plaintiffs and to be proven prior to the time of such judgment, including such damages Plaintiffs incurred in defending and resolving the PCB Lawsuits;
B. A declaration that the Special Undertaking Agreements individually and collectively apply to the PCB Lawsuits and impose on Defendants individually and collectively a duty to defend Old Monsanto and its present, past, and future directors, officers, employees and agents in the PCB Lawsuits and any future PCB Lawsuits;
C. A declaration that Defendants individually and collectively shall bear responsibility for any and all of the defense costs (including attorneys’ fees, costs, and expenses) of Old Monsanto and its present, past, and future directors, officers, employees and agents in the PCB Lawsuits and any future PCB Lawsuits, which are being paid and/or have agreed to be paid by New Monsanto …
E. A declaration that Defendants shall individually and collectively indemnify Old Monsanto and its present, past, and future directors, officers, employees and agents for the total amount of the settlement of some of the Food Chain Cases, the total amount of the settlement of certain Water Cases, and the total amount of the judgments entered in the Sky Valley School Cases;
F. A declaration that Defendants, respectively, shall honor all of their obligations and responsibilities set forth in their respective Special Undertaking Agreements regarding the PCB Lawsuits and any future PCB Lawsuits …
J. Alternatively, Plaintiffs request that the Court enter a judgment requiring Defendants to pay their equitable share of liability incurred by Plaintiffs in the PCB Lawsuits, including but not limited to Defendants’ equitable share of the amounts Plaintiffs has paid and/or has agreed to pay to settle some of the Food Chain Cases and the Water Cases, and the judgments entered against Plaintiffs in the Sky Valley School Cases …
When I began this journey, I never imagined the wealth of information that Monsanto, in search of billions of dollars in reimbursement fees and in hoped-for savings from ongoing and future PCB lawsuits, would be offering up in its lawsuit. In many ways, if you can get past the significant irony at work here, Monsanto tells a clear story of how severely and perhaps irredeemably our world has been poisoned by all the parties in this action. Make no mistake, however this ends, it seems to me that there really is no honor amongst thieves. And so, is it really a surprise that none of them really wants to pay for the extraordinary damage they have done to us?
Let me end “Round Two” with GE’s counterpunch: On May 5, 2023, GE and Paramount Global, Kyocera AVX Components, Paramount Global, Cornell-Dubilier Electronics, and the Gillette Company LLC filed their “Joint Motion to Dismiss Counts I-IV and VII of Plaintiff’s First Amended Petition.”
I will deal in greater depth with the arguments GE and the other defendants make in “Monsanto v. General Electric — Round Three,” but let me at least preview some of the major arguments: “Plaintiffs improperly treat the separate Defendants—each of whom has its own SU and history with Monsanto—as one collective entity, ignoring the important Defendant-specific and other limitations on liability each Defendant’s SU contains.” Significantly, Monsanto fails “to plead a connection between any liability and PCBs sold to any particular Defendant.”
Ah, the disaggregation dilemma. In other words, GE reminds us that there is no proof whether the PCBs involved in any of these particular cases can be definitively tied to any particular defendant or any particular moment in time: “With Paramount, for example, not once do Plaintiffs allege that PCBs sold to Westinghouse (Paramount’s predecessor in interest) were at issue in any of the underlying claims. The same is true for the other Defendants.”
In the meantime, I am going to comfort myself with the small gift given us: Monsanto has been forced to finally own up to some of what they have wrought—and, in the process, to out their fellow contaminators.
