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White and Williams Secures Landmark First Circuit Ruling in Chemical Contamination Case

December 8, 2017

In a landmark decision that defines the plaintiff’s burden of proof in chemical contamination cases, the United States Court of Appeals for the First Circuit ruled that the presence of an imperceptible chemical is insufficient to prove property damage; the plaintiff must prove that the chemical was present at levels known to cause human disease; and this fact must have been reasonably foreseeable at the time the chemical was manufactured and sold.

In a victory for Monsanto Company (now Pharmacia Corporation), the First Circuit rejected claims in excess of $23 million for the remediation of polychlorinated biphenyls (PCBs) from a Massachusetts public school. At the time of the school’s construction in 1969, PCBs were lawfully used in building products such as caulk.

After detecting PCBs in the school during renovations four decades after construction, the Town of Westport brought suit against Monsanto seeking recovery for property damage under Massachusetts law. After Monsanto won on summary judgment in the District Court of Massachusetts, the First Circuit handed Monsanto another victory by holding that the presence of a known toxic substance is not sufficient to impose liability.

The Court held the plaintiff to the burden of proving that, at the time of construction of the school in 1969, it was reasonably foreseeable that PCBs would volatilize (off-gas) at levels harmful to human health. The Court reasoned that, because PCBs are imperceptible, their only deleterious effect is their potential to harm human health. Because the plaintiff’s own experts conceded that there are no studies, even today, that purport to demonstrate that PCBs volatilize at levels capable of causing human disease, the Court conclusively determined that the risk that PCBs would volatilize from caulk at harmful levels was not reasonably foreseeable in 1969.

Monsanto was represented by Thomas Goutman, Kim Kocher, Rosemary Schnall and David Haase in our Philadelphia Office; Richard Campbell and Brandon Arber in our Boston Office; and Christopher DiMuro in our Newark, New Jersey office.

Town of Westport v. Monsanto Co. et al., case number 17-1461, United States Appeals Court for the First Circuit

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