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Monsanto loses bid to end Seattle lawsuit over PCB contamination

The ruling clears the way for Seattle to take Monsanto to trial in September over its public nuisance claim.

(CN) — A federal judge on Friday rebuffed Monsanto's attempt to end a lawsuit by Seattle that seeks hundreds of millions of dollars in damages to mitigate the contamination of the Duwamish River and the city's stormwater and drainage system by polychlorinated biphenyls.

U.S. District Judge Richard Jones denied Monsanto's motion for summary judgment on the city's claim that the agrochemical giant, now owned by Bayer AG, created a public nuisance by manufacturing, marketing and distributing toxic chemicals that have contaminated the lower river and Seattle's drainage lines.

"The parties have taken 59 depositions, exchanged over 5 million pages of document discovery and offered 58 expert reports," Jones noted. "There is admissible evidence and expert testimony to create an issue of fact as to each element of the city’s public nuisance claim. Viewed in the light most favorable to the city, this evidence requires the court to deny defendants’ motion."

The ruling clears the way for Seattle to take Monsanto to trial, which is currently scheduled for September.

Among the arguments Monsanto put forth in its attempt to defeat Seattle's claim as a matter of law was that the city cannot prove that the company manufactured and sold PCBs with the intent to cause the alleged public nuisance.

This, the judge said, was too exacting a standard because under Washington law, if a person or entity knows that the consequences of their action are certain, or substantially certain, and still goes ahead, they are treated by the law as if they had in fact desired to produce the result.

"Indeed, the city provides evidence that Monsanto knew for a fact that widespread use of the PCBs it manufactured was contaminating the environment," Jones said. "Even with the knowledge of the pollution issue related to certain PCB products, Monsanto instructed its salespeople to avoid returns from its customers, noting 'we cannot afford to lose one dollar of business.'"

Monsanto said in a statement that it respectfully disagrees with the court’s decision and that it is confident that the full evidentiary record will demonstrate that the company should not be liable for city's claims, which it still has to prove at trial. In addition, Monsanto noted, the scope of Seattle's claims have been narrowed to focus solely on fish consumption advisories issued for the Lower Duwamish Waterway, and the court cut the damages at issue by more than $180 million.

“The undisputed evidence shows that PCB-containing finished materials, manufactured by other companies, ended up in the Lower Duwamish Waterway through dozens of intervening third-party actors over whom Monsanto had no control, including the city, its stormwater and wastewater conveyance system, and other private and governmental entities," the company said.

According to Monsanto's motion for summary judgment, filed in August of 2022, Seattle seeks more than $700 million in damages from PCB contamination.

Jones last year rejected Monsanto's argument that Seattle's claims were covered by the company's $95 million settlement with Washington in 2020. The judge in that decision endorsed the recommendations of U.S. Magistrate Judge Michelle Peterson that the state’s settlement did not release Monsanto from public nuisance claims by Seattle, and that the state suit did not bar Seattle’s claim.

Peterson highlighted ambiguities in the state’s settlement agreement with Monsanto regarding the release of state agencies. Though Monsanto argued that this language included King County and Seattle, the city reasoned that state and county agencies are separate entities.

Although use and production of PCBs have been banned since 1979, ill effects still linger, often due to poorly managed waste systems and landfills where the chemicals leach off products that use them and persist in the environment. Humans can be exposed to PCBs through ingestion, inhalation and even just direct contact.

Seattle brought the lawsuit in 2016, saying that Monsanto knew for decades of the potential dangers of PCBs but concealed this. When PCBs leached into Seattle's stormwater and wastewater, they became the most widespread contaminant discharged into the Duwamish, which runs straight through the city.

Follow @edpettersson
Categories / Courts, Environment, Regional

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