Marathon Environmental Suit May Finally End After Defense Wins Second High-Stakes Jury Trial

In what may signal the beginning of the end of a lawsuit that has been pending since 1990, a Pennsylvania Commonwealth Court jury recently returned a verdict in favor of White and Williams' client, Monsanto Company. It was the second time the case went to verdict — the first verdict in the plaintiffs' favor was overturned by the Pennsylvania Supreme Court. The new verdict is a testament to persistence, advocacy, and strategic decisionmaking. White and Williams Partner and former Litigation Department Chair Tom Goutman acted as lead counsel for both trials and the appeal.

The plaintiffs, several Pennsylvania state agencies, claimed $120 million in damages allegedly resulting from chemical contamination of the Transportation and Safety Building in Harrisburg. Monsanto manufactured the chemical in question, polychlorinated biphenyls ("PCBs"), until shortly before a Congressional ban in the mid-1970's. At the time, PCBs were routinely used in many building products, including mastic, caulk, and glue. Plaintiffs demolished the building several years after PCBs were detected in the aftermath of a June 1994 fire. Plaintiffs alleged that PCBs can cause cancer and pediatric developmental effects, and that the PCBs found on surfaces and within building products throughout the building created an intolerable risk to workers' health and safety. After deliberating for five hours, the jury returned a verdict in Monsanto's favor, specifically finding that PCBs were not "defective."

In The Beginning, There Was Asbestos

The litigation began in 1990 when the plaintiffs sued the manufacturer of asbestos-containing insulation that had been sprayed on the under-flooring of the Transportation and Safety Building when it was constructed in the mid–1960's. Even though PCBs were detected throughout the building in 1994 as a result of post-fire testing, plaintiffs did not join Monsanto until 1997 — a joinder motivated, in part, by the financially precarious position of the asbestos defendant. As the financial fortunes of the asbestos defendant slowly sank, plaintiffs re-tooled their case to focus on the "deep pocket," Monsanto Company. Thus, although the building had 1.2 million square feet of deteriorating asbestos — a condition whose government agencies had long viewed as a health hazard that required removal — those same government agencies told the juries in both trials that the asbestos was, in fact, "safe," and that PCBs were so "dangerous" that the 12-story office tower had to be demolished.

The First Trial

In May 1999, the first trial began in Commonwealth Court in Philadelphia. It was to be the longest jury trial in Pennsylvania history, not ending until August 2000. Plaintiffs presented multiple expert witnesses who testified about PCB's alleged health effects, the extent of PCB contamination in the building, and the source of that contamination ("off-gassing" of PCBs from building products.) Witnesses attested to the allegedly resulting damages ($125 million for a new building, $20 million for decontamination and demolition, $35 million for new furniture and a new computer system, and $50 million for relocation costs incurred during demolition and reconstruction). Monsanto countered with expert testimony that despite the Congressional PCB ban, epidemiological evidence failed to demonstrate that PCBs were a human health hazard, and that, in any event, PCB levels in the building were safe. Further, Monsanto contended that the source of the contamination was not "off-gassing" (because of PCBs well-known chemical stability and low vapor pressure) but rather the incineration of PCB–containing building products in the 1994 fire. Lastly, evidence showed that much of plaintiffs' claimed damages would have been incurred by the state anyway, even in the absence of alleged PCB contamination. After deliberating over 13 days, and just one hour after advising the Court that it was hopelessly deadlocked, the jury returned a verdict against Monsanto in the amount of $90 million.

The Supreme Court Reverses

In a landmark decision in May 2006, the Pennsylvania Supreme Court reversed. It granted judgment notwithstanding the verdict on over $100 million of plaintiffs' claimed damages, and remanded the case for a new trial on the remaining claims.

The Supreme Court found to be reversible error the trial judge's ruling that had permitted plaintiffs to seek recovery for fire-related contamination. The Supreme Court held that as a matter of law, the incineration of a product cannot be an "intended use" under strict product liability. The Supreme Court rejected plaintiffs' novel damage theory that would have allowed a windfall recovery for replacement costs in property damage cases (instead of the long-established measure of the lesser of repair costs or diminution in market value). Lastly, the Supreme Court threw out various categories of damage claims that had not been supported by appropriate expert testimony.

The Second Trial

In January 2007, almost seven years after the first trial ended, the second trial began. As before, plaintiffs' trial team was led by an out-of-state, nationally known mass and toxic tort trial lawyer. Plaintiffs used the same experts and presented much the same evidence as in the first trial. Monsanto recalibrated its trial strategy in light of the Supreme Court's "intended use" holding. It conducted only limited cross-examination of plaintiffs' PCB health effect experts, and decided not to call any of its three PCB health effect experts. In place of expert testimony, Monsanto used dozens of government memoranda, pronouncements, press releases and newsletters issued before Monsanto had been sued — documents that unequivocally gave the Transportation and Safety Building a clean bill of health. Because of Monsanto's truncated defense, the second trial lasted only five weeks — and this time, Monsanto won.

Another Appeal?

On July 3, 2007, a three-judge panel of the Commonwealth Court denied plaintiffs' post-trial motions, setting the stage for another possible appeal to the Supreme Court. Monsanto's appellate team, lead by White and Williams' Appellate Practice Group Chair, Kim Kocher, is confident that, this time, the jury's verdict will stand. Thus, after seventeen years of litigation, this case may, at long last, be nearing its final chapter.

Tom Goutman headed the White and Williams team which represented Monsanto Company. He can be reached at 215-864-7057 or goutmant@whiteandwilliams.com.