Judge Rejects Bay Area Cities’ Monsanto PCB Lawsuits

By Joyce E. Cutler

Aug. 24 — Three California cities have three weeks to devise arguments that Monsanto Co. should be held liable for polychlorinated biphenyls contamination in San Francisco Bay, a federal judge ruled ( City of San Jose v. Monsanto Co., N.D. Cal., No. 5:15-cv-03178, order granting motions to dismiss filed 8/22/16 ; City Of Oakland v. Monsanto Co., N.D. Cal., No. 5:15-cv-05152, order granting motion to dismiss filed 8/22/16 , City of Berkeley v. Monsanto Co., N.D. Cal., No. 5:16-cv-00071, order granting motions to dismiss filed 8/22/16 ).

San Jose, Oakland and Berkeley, Calif., lack standing to sue Monsanto over decades-old contamination from PCBs that eventually made it to the cities’ municipal stormwater systems, Judge Edward Davila, of the U.S. District Court for the Northern District of California, ruled Aug. 22 in dismissing their public nuisance lawsuits.

PCBs Run Through It

“The Cities do not take ownership of stormwater merely because it flows through municipal pipes on its way to the Bay,” Davila said, ruling 13 days after holding oral arguments.

The dismissals are the first ruling to emerge from a flurry of recent “super tort” lawsuits West Coast cities filed seeking to hold Monsanto liable for allegedly polluting public waterways with polychlorinated biphenyls made decades ago to insulate electrical equipment.

The cities contend they’ve incurred costs to clean up the discharge under state and federal requirements and that Monsanto, which was the nation’s sole U.S. PCB manufacturer, should pony up its share of the clean up costs.

“However, as Defendants point out, the Cities have had to pay because of a regulatory requirement, not an adverse judgment. And although it may be true that the State of California could bring a public nuisance action against the cities, an equitable indemnity cause of action is premature unless and until the State does so and obtains a judgment or settlement,” Davila said.

Davila gave the cities until Sept. 13 to file amended complaints on the nuisance causes of action.

Rejection, Redo

“The court's ruling is a complete rejection of these contrived legal theories that confirms there is no basis in the law for these speculative nuisance claims by the cities,” Scott Partridge, Monsanto global strategy vice president, said in a statement. “San Jose, Berkeley and Oakland have been ill-served by the overly aggressive tactics of their contingency fee counsel, and we hope this ruling will conclude this matter.”

Cities are bearing the cost to reduce and remove Monsanto's PCBs from stormwater as part of their fundamental and important function of stormwater management, said the cities’ lead attorney, John P. Fiske, Gomez Trial Attorneys, San Diego.

“The Cities look forward to providing the court further information in the amended complaint regarding their stormwater management and legal standing," Fiske said in a statement e-mailed Aug. 23 to Bloomberg BNA.

Defense attorneys Aug. 23 notified the federal court in San Diego, where a judge is considering the first-filed test case against Monsanto pertaining to San Diego Bay, of Davila's ruling (San Diego Unified Port Dist. v. Monsanto Co., S. D. Cal., No. 15-CV-578, notice of supplemental authority filed 8/23/16 ).

Monsanto is seeking to dismiss similar litigation in Seattle ( City of Seattle v. Monsanto Co., W.D. Wash., No. 2:16-cv-00107, reply filed 7/29/16 ); Spokane, Wash. ( City of Spokane v. Monsanto Co., E.D. Wash., No. 2:15-cv-00201, memorandum of opposition filed 7/23/16 ); Portland, Ore. ( City of Portland v. Monsanto Co, D. Ore., No. 3:16-cv-01418, response filed 8/22/16 ); and Long Beach, Calif. ( City of Long Beach v. Monsanto Co., C.D. Cal., No. 2:16-cv-03493, notice of supplemental authority filed 8/23/16 ).

Panel Had Rejected Consolidation

The panel on multidistrict litigation last April rejected the cities’ motion to consolidate the litigation in the Northern District of California ( n re Monsanto PCB Water Contamination Litig., 2016 BL 110517, J.P.M.L., No. 2697, order 4/7/16 ).

Robert M. Howard, Kelly E. Richardson and Jennifer Casler-Goncalves with Latham & Watkins LLP in San Diego and Andrea M. Hogan, Latham’s San Francisco office, represent Monsanto, Solutia and Pharmacia. Gomez Trial Attorneys, San Diego, Baron & Budd P.C., Dallas,and Jackson Gilmour & Dobbs PC, Houston, represent the plaintiffs.

To contact the reporter on this story: Joyce Cutler in San Francisco at jcutler@bna.com.

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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