New York Class Action Appeal Controversially Dismissed

Bhopal gasd disaster legal proceedings

Photograph by Alex Masi

On June 27th 2013 the U.S. Second Circuit Appeals Court affirmed a District Court order granting summary judgment to Union Carbide Corporation in the  civil action Sahu v. UCC, which began in 2004.   The action sought relief and medical monitoring for the ongoing contamination in Bhopal caused by the indiscriminate dumping of toxic waste, in and around the Union Carbide factory, for 15 years during its manufacturing operation.

Bhopal survivor groups working in support of the class action , have termed the Appeal Court’s decision a “gross miscarriage of justice”. Responding to the text of the judgment, human rights lawyer Louise Christian said the Appeal Court’s decision “should shame the world”. The judgement will not carry any authority as precedent in related future cases  as it is framed as a ‘non-precedential summary order’. Non-precedential orders do not require an Appeal court to set out the reasoning behind their decision-making in detail. As a result, the court’s decision does not substantively address the volume of evidence presented by Sahu et al in contradiction of Union Carbide’s position that it could not be held liable for the environmental disaster in Bhopal. Plaintiff’s contend that this documentary evidence demonstrates intimate knowledge, approval, participation and control of Union Carbide in creation of an environmental nuisance estimated to be affecting over 40,000 people today.

In rejecting the weight of this countervailing evidence, the three-judge panel argue that Union Carbide is not the correct entity for litigation and that there existed a distinct separation between Union Carbide India Ltd,  operator of the Bhopal plant, and its parent company the Union Carbide Corporation, U.S.A. – now owned by Dow Chemical. Lawyer Louise Christian commented, “Those who run multinational corporations should not be allowed to escape liability for grievous harm by creating complex corporate structures and hiding behind these.

The case was previously dismissed in 2006 but a 2008 appeal showed that the District Court had not given Sahu sufficient notice for an adequate response to UCC’s motion before arriving at summary judgment. This gave a period of discovery in which many crucial documents were uncovered.

During discovery, Sahu specifically challenged the District Court’s refusal to permit certain depositions, including that of former Union Carbide CEO Warren Anderson, who remains a declared fugitive from India’s courts, charged with culpable homicide and other serious criminal offences. The District Court denied Sahu’s deposition requests on the grounds that they would be “unduly burdensome.” The Appeal Court agreed, favourably quoting the District Court’s asserting that no witnesses could be expected to accurate  and detailed accounts of events 15-35 years later.  Such a perspective appears to reward those defending cases involving significant judicial delay, such as Bhopal.

Reacting to the court’s decision, award-winning British human rights lawyer Louise Christian  said that: “The US appeals court has ignored compelling evidence about the central role played by the Union Carbon Corporation based in the US in equipping, overseeing and enabling the Indian offshoot of the company to produce UCC’s own product… UCC failed to give advice which would have ensured not only that the leak of gas itself did not happen but also prevent the contamination which has poisoned the drinking water in a large area around where the plant was.”

A fraction of the evidence referred to by Ms. Christian is cited in an article published by the Bhopal Medical Appeal, in the Bhopal Marathon, entitled:

‘Union Carbide’s secret disaster: the second poisoning of Bhopal’

Referring to more of the evidence presented to the Southern District Court of New York, Rachna Dhingra of the Bhopal Group for Information and Action said:

“Internal corporate documents presented before the appellate court unambiguously demonstrate that Union Carbide Corporation, USA, and not its Indian subsidiary, had designed the waste disposal system in the Bhopal plant, as well as supervised its operation and monitored the harmful consequences of the hazardous design,”

She alleged that the judges turned a blind eye to the facts on record simply in order to avoid making American corporations accountable for crimes committed outside the U.S.
Nawab Khan, president of the Bhopal Gas Peedit Mahila Purush Sangharsh Morcha, said lawyers representing the plaintiffs were “exploring all options” to continue the legal fight. “It took survivors of the Nazi holocaust 50 years to obtain redress through the courts,” Khan said. “Like them, we will not give up until we receive complete justice for the wrongs done to our families.”

Balkrishna Namdeo, president of the Bhopal Gas Peedit Nirashrit Pension Bhogi Sangharsh Morcha, said the US judges clarification that the decision to absolve the parent corporation, a majority partner in the Indian subsidiary, should not be cited as a precedent for other cases “is the best illustration of how unsure the judges themselves are about the legal validity of their decision”.

Louise Christian added:

“This decision to deny justice to poor and vulnerable people caused irreparable harm by big business should shame the world… The paltry compensation paid in India to the victims and the failure to prosecute anyone over Bhopal is a disgrace. The history should be reviewed by the United Nations with a view to introducing international law mechanisms for securing justice in this and other cases.”

Bhopal survivors’ groups are now urgently seeking intervention of the Indian Government in the New York lawsuit. Their fight continues.

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We believe Dow & DuPont must finally accept responsibility for Bhopal. Until then, The Bhopal Medical Appeal funds two award-winning clinics in the city. Both offer free, first-class care to victims of the gas disaster or the ongoing water contamination. The survivors have nowhere else left to turn – please help if you can.