Sahu II
On 24th May, 2016, the New York federal appeals court found that Union Carbide Corporation (UCC) could not be sued for the ongoing pollution of drinking water caused by toxic waste dumped in and around the abandoned Union Carbide factory in Bhopal. Judgement 24/05/2016: Click here to find out more
โWe disagree with the Courtโs interpretation of the evidence.โย said Richard Herz, Senior Litigation Attorney for EarthRights International (ERI), which represents the plaintiffs. โThe Court concluded that UCC is not responsible for the actions of its own employee, who oversaw the construction of the plant. Additionally, two leading expertsย concluded that UCCโs technology and waste disposal strategy for the plant was improper for the site, and caused the water pollution that we still see today.โ
Plaintiffs filed a petition for rehearing at the Second Circuit Court of Appeals. Petition for re-hearing 21/06/2016: Click here to find out more
On the 15th August, 2016, an order was issued dismissing the petition without any comment.
Sahu II History
Union Carbide Corporation was subject to a federal class-action lawsuit (Sahu II v. UCC), in the Southern District New York Court, asserting damage caused by the water contamination resulting from toxic chemicals leaching from toxic waste, abandoned by Union Carbide, into the local groundwater aquifer. The US courts accept that this is a separate matter from the 1984 gas disasterย and has not been part of any pre-existingย settlement. UCC argued in Newย York that only an Indian court can order a clean-up in Bhopal. However both UCCย and Dow have also pleaded (inย the Madhya Pradesh court) that Indian courts have noย jurisdiction over them.
A previous case, Sahu I, asserted personal injury claims andย was filed in 2004. In November 2006, the District Court for the Southern District of New York granted summary judgment to the defendants, finding them not liable for damages alleged. Sahu II asserts property damage claims using different plaintiffs. EarthRights International (ERI), have been, with others, a counsel for the plaintiffs and here follows their succinct explanation of the Sahu I & Sahu II Class actions:
Sahu v. Union Carbide Corp. refers to two separate lawsuits on behalf of residents of Bhopal, India, against Union Carbide Corporation for water pollution. A poisonous gas leak from the same plant killed over 5,000 people in 1984. ERI has also served as co-counsel on behalf of different plaintiffs in a previous case arising from water pollution from the plant, but that case was ultimately dismissed.
The first Sahuย case,ย Sahu I, asserts personal injury claims andย was filed in 2004. In November 2006, the District Court for the Southern District of New York granted summary judgment to the defendants, finding them not liable for damages alleged. The Second Circuit, however, vacated the judgment on grounds that the trial court did not provide the plaintiffs notice that it intended to rule based upon the limited evidence that was before the court, and sent the case back down to the District Court for further proceedings.
In 2007, while Sahu I was on appeal, Sahu II was filed, asserting property damage claims. Although the named plaintiffs in Sahu II are not identical to those in Sahu I, because the facts at issue in the cases are similar the District Court granted the plaintiffsโ motion to stay Sahu II in 2007.
On June 26, 2012, the District Court once again granted summary judgment to the defendants in Sahu I. The plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit, which heard oral argument on June 17, 2013. On June 27, 2013, the Second Circuit upheld the district courtโs dismissal. Summary Order 27/06/2013: click here to read more
After the Second Circuitโs order, the Court dissolved the stay in Sahu II, and UCC moved for summary judgment arguing that Sahu II should be dismissed on the same grounds as Sahu I. The Sahu II plaintiffs opposed that motion, presenting evidence of UCCโs responsibility that was not before the Court in Sahu I. In particular, plaintiffs presented the declarations of two eminent waste disposal experts, who show that UCCโs manufacturing design and โhigh riskโ waste management strategy caused the pollution. Plaintiffs also submitted the declaration of L.J. Couvaras, who was the Project Manager for the construction of the plant, as well as that of a UCIL employee, both of whom demonstrate that Couvaras was a UCC employee when he oversaw and approved all design done in India and construction. This shows that UCC had final authority over all design, including of the waste disposal system.
On July 30, 2014, the District Court granted summary judgment inย Sahu II. ย In his decision, Judge Keenan improperly dismissed Couvarasโs declaration โ which he described as unsupported โ despite the fact that judges are not supposed to weigh the persuasiveness of evidence at the summary judgment stage. ย
The plaintiffsย appealedย this decision in November 2014 inย the U.S. Court of Appeals for the Second Circuit, contesting a lower courtโs decision that UCC could not be sued for ongoing pollution.ย
In addition to EarthRights International (ERI), counsel for the plaintiffs include or have included Sharma & DeYoung LLP, Curtis Trinko, Hausfeld LLP, and Cohen Milstein Sellers & Toll PLLC.
After Judge Keenanโs dismissal, in July 2014, Marco Simons , Legal Director of EarthRights International, assisting the Bhopal plaintiffs in the case said:
โJohn Couvaras, the project managerย who directly oversaw the construction of the Bhopal plant, testified that heย workedย for Union Carbide at the time. A manager from Union Carbideโs Indianย subsidiary confirmed this assertion.โย
โAstonishingly, the court simply didnโt care.ย Couvarasโs own testimony about the company he worked for is โunsubstantiated,โย (Judge) Keenan decided.ย Instead, Union Carbideโs statements that Couvaras worked forย its subsidiary were โconclusiveโ evidence. If you ever thought you knew yourย ownย employerโs identity, think again โ your testimony on that subject isnโtย even really evidence.โ
โAfter the Bhopal debacle,ย Union Carbide packed up and left a mess thatโs still poisoningย residents and their environment, and its mess is nowย Dowโs problem. Peopleย living near the plant continue to suffer physical ailments, live onย contaminated property, and drink poisoned water. Not onlyย have the victims beenย denied justice at every door theyโve knocked on, they have also been sued forย seeking justice in the first place.โย ย
(Note: Dowย has tried toย sue Bhopal activists four different times in Indian courts over their continuedย protests against the company).