HARRISBURG – Per a Dec. 30 ruling from the Commonwealth Court of Pennsylvania, former agricultural biotechnology company Monsanto has lost the majority of its preliminary objections to litigation brought against it by the state, connected to natural resources damages allegedly caused by the company’s chemical compounds.
While the Court sustained two of Monsanto’s preliminary objections and partially sustained another, it overruled the remaining six.
Commonwealth Court Judge Anne E. Covey authored the ruling.
Pennsylvania’s Department of Environmental Protection, Department of Conservation and Natural Resources, Fish and Boat Commission and the Game Commission brought legal action against Monsanto, Solutia, Inc. and Pharmacia, LLC, over damaging effects from polychlorinated biphenyls (PCBs), on the state’s natural resources.
According to the state, the trio of companies knew about the risks associated with producing PCBs, but did so anyway, leading the chemicals to allegedly cause millions of dollars in damages to Pennsylvania’s land, water, populace and wildlife over a 48-year period, from 1929 to 1977.
Though the federal government outlawed the use of PCBs in 1979, harmful effects from the chemicals continue to be felt, Pennsylvania says, because PCBs are hydrophobic and do not dissolve in water. According to the plaintiffs, PCBs are carcinogenic and can cause disease in both humans and animals.
In their preliminary objections, Monsanto took exception with the state’s claims and countered that they lacked proper legal foundation.
While the Commonwealth Court dismissed the state’s trespassing and unjust enrichment claims and sustained Monsanto’s objections as it relates to continuing harm (since the company long ago stopped producing PCBs), the judges overruled objections relating to an ongoing duty to warn or repair damages already caused.
“In the absence of explicit prohibitions against plaintiffs’ claimed damages under the circumstances presented in this litigation, and notwithstanding defendants’ claims to the contrary, this Court is satisfied that plaintiffs have sufficiently pled damages (including a continuing duty to correct and remediate any harm defendants caused) to overcome defendants’ demurrer. However, whatever the proper measure of plaintiffs’ damages in this case may be, it is premature at this stage to rule upon them in the context of these preliminary objections without discovery or development of a record,” Covey said.
Meanwhile, Commonwealth Court Judge P. Kevin Brobson, recently elected as a justice on the Supreme Court of Pennsylvania, expressed skepticism as to the likelihood of success for the state’s claims.
Concurring in Brobson’s opinion was newly-elected Commonwealth Court Judge J. Andrew Crompton.
“As this novel, complex, common law tort matter develops, it would be beneficial, in my view, for the parties to better elucidate the relation, if any, of the Commonwealth plaintiffs’ common law tort theories of liability to the myriad of existing environmental statutes and regulations, state and federal, that would seem to capture some, if not all, of the alleged wrongdoing in the complaint,” Brobson said.
“I am particularly concerned about whether affording the Commonwealth and its agencies broad access to common law remedies to address and remedy environmental contamination and punish polluters would make dead letters out of our environmental laws.”
In a concurring and dissenting opinion, Commonwealth Court Judge Patricia McCullough said she personally would have overruled all of the defendants’ preliminary objections.
“Although I concur with the majority in most respects, I would overrule all of the preliminary objections of Monsanto Co., Solutia, Inc., and Pharmacia, LLC. I am of the view that the Commonwealth parties have pleaded sufficient facts to support each of their claims, at least for purposes of surviving preliminary objections,” McCullough stated.
“Because I believe the record lacks such certainty in the failure of any claim before us, I would resolve my doubts in favor of allowing each to proceed beyond this initial stage of litigation. Accordingly, I respectfully dissent with regard to the majority’s disposition of the third, seventh and eighth preliminary objections. In all other respects, I join the majority opinion.”
Bayer, which now owns what was once Monsanto, issued a statement in response to the ruling.
“We are pleased with the Court’s decision to narrow the claims in this case; however, we continue to believe the lawsuit lacks merit, and will vigorously defend the remaining claims as the legal process moves ahead. Monsanto voluntarily stopped its lawful production of PCBs more than 40 years ago and never manufactured, used or disposed of PCBs into Pennsylvania’s waters, and therefore should not be held liable for the contamination alleged by the plaintiffs,” the company said.
Commonwealth Court of Pennsylvania case 668 M.D. 2020
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com