On June 26, 2012, Judge Wallace of the Circuit Court for St. Louis County, Missouri, handed Husch Blackwell client Monsanto Company a significant victory by granting Monsanto’s motion for summary judgment in a first-of-its kind lawsuit brought by individuals claiming exposure to polychlorinated biphenyls (PCBS) through the food chain.  In this case, three Plaintiffs, each residents of California, claimed to have contracted non-Hodgkin’s lymphoma as a result of their exposures to PCBs through the foods they consumed  Plaintiffs did not allege that their PCB exposures were due to any direct action by Old Monsanto (now known as Pharmacia Corp.). Instead, they claimed that that the use or misuse of the product by tens of thousands of downstream users far removed from Monsanto caused the environmental contamination that led to their subsequent exposures.  Judge Wallace’s Order confirms that under California law plaintiffs cannot seek to impose liability for the lawful production of a product decades after its production has ceased and where the alleged exposure has resulted from the use and misuse of the product by third parties beyond the control of the manufacturer.   

In granting Monsanto’s motion for summary judgment on Plaintiffs’ negligence and strict product defect claims, Judge Wallace focused on the issue of duty under California tort law.  Judge Wallace observed that the general rule under California’s negligence law is that everyone has a duty to exercise ordinary care.  However, she noted, California courts have identified factors that, when balanced together, may justify the departure from this fundamental principle.  These factors, known as the “Rowland factors,” named after the California Supreme Court’s decision in Rowland v. Christian, 69 Ca1.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561 (1968), include: the foreseeability of harm to the plaintiff; the degree of certainty that the plaintiff suffered injury; the closeness of the connection between the defendant’s conduct and the injury suffered; the moral blame attached to the defendant’s conduct; the policy of preventing future harm; the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and the availability, cost, and prevalence of insurance for the risk involved.

Judge Wallace’s opinion takes particular care to balance the Rowland factors in holding that Monsanto owed no duty to these Plaintiffs.  Specifically, Judge Wallace held that Monsanto could not reasonably foresee that its conduct would harm Plaintiffs because of the remoteness with which the Plaintiffs stood to Monsanto’s alleged conduct.  The Court observed that the Plaintiffs’ alleged injuries involved an extended sequence of multiple occurrences, which the Plaintiffs admitted they simply cannot identify.  Plaintiffs could not trace a clear path from the manufacture and sale of PCBs decades ago to the Plaintiffs themselves.  Nor could Plaintiffs identify whether their exposures resulted from PCBs that were illegally dumped by third parties decades after Monsanto manufactured them or to PCBs manufactured before the 1940s, the time when Plaintiffs claim Monsanto should have ceased their manufacture.

Judge Wallace further found that Plaintiff’s theory of exposure through the food chain created a potentially limitless pool of plaintiffs.  She reasoned:

In fact, every living human being is a potential plaintiff,” an “unidentified, uncertain and extraordinarily large population.” 

Accordingly, she found that the excessive burden placed on Monsanto under these circumstances weighs against the imposition of a duty.  Finally, Judge Wallace also found in Monsanto’s favor on the fourth Rowland factor as Monsanto was unable to prevent future harm.

After dismissing Plaintiffs’ negligence claim, Judge Wallace also dismissed Plaintiffs’ strict product liability claim on similar grounds.  Judge Wallace held that Monsanto cannot be held strictly liable to the Plaintiffs for injuries caused by PCBs in the environment resulting from the unforeseeable and unintended uses of dumping, disposal, scrapping, recycling, incineration and destruction of PCBs and PCB-containing products by third parties. 

Monsanto’s Motion for Summary Judgment was written and argued by Mark Arnold.  Judge Wallace’s opinion was issued less than one month before trial was scheduled to commence.  The trial team for Monsanto’s defense included Husch Blackwell attorneys Tom Carney, Adam E. Miller, Chris Miller, Carol Rutter, Charlie Merrill, Julia Farrell, and Robyn Buck.