Monsanto Fights to Keep PCB Claims in Federal Court

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By Peter Hayes

July 19 — Monsanto Co.'s effort to keep PCB cancer claims against it in federal court was put on hold July 19 by the Eastern District of Missouri ( Burford v. Monsanto Co., 2016 BL 229568, E.D. Mo., No. 16-CV-536, 7/18/16 ).

The court put off a ruling on whether to uphold Monsanto's removal of a PCB suit to federal court on the ground that it operated under the direction of the federal government.

The court deferred to the Eighth Circuit to decide the issue in a separate PCB suit against Monsanto in which the Eastern District of Missouri ruled against the company on the issue ( Bailey v. Monsanto Co., 8th Cir., No. 16-02096 ).

In this case, 28 plaintiffs sued Monsanto in state court, alleging they developed cancer as a result of dietary and other environmental exposure to polychlorinated biphenyls.

The plaintiffs limited their claims to PCBs sold for use in open applications—such as inks, paints, pesticides, plasticizers, hydraulic fluids, lubricants, adhesives, heat transfer fluids, and carbonless copy paper—and renounced any cause of action for “any exposure to PCBs sold by defendants at the direction of any officer of the United States or any of its agencies or entities or any person acting at their direction.”

Monsanto removed the case to federal court under the federal officer removal statute, which allows the transfer of a suit if the defendant acted as a federal contractor (28 U.S.C. §1442(a)(1)).

The plaintiffs sought to remand, arguing that Monsanto didn't contract directly with the government, but rather with government contractors, and that Monsanto failed to show any government contracts for PCBs that were used in open applications.

The court stayed the motion, finding the “decision in Bailey will likely have a significant effect on the ultimate disposition of the instant matter.”

Judge Patricia L. Cohen issued the memorandum and order.

Waters and Kraus, LLP in Dallas represents the plaintiffs.

Thompson Coburn, LLP in St. Louis represents Monsanto.

To contact the reporter on this story: Peter Hayes at phayes@bna.com

To contact the editors responsible for this story: Steven Patrick at spatrick@bna.com and Nicholas Datlowe at ndatlowe@bna.com

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