Brief History of the Three Class Actions

Water From a Contaminated Well. Photo: (c) Alex Masi

Water From a Contaminated Well. Photo: (c) Alex Masi

The first of the class action suits was Bano v. Union Carbide – Filed in 1999 and referred to as “Bano” the claim sought a comprehensive clean-up of the contaminated site and the properties around the factory, as well as compensation and medical monitoring for those poisoned by Carbide’s chemical waste.

On August 28, 2000, Bano was summarily dismissed by Judge Keenan and, after appeals, in 2005, the district court dismissed the property claim of the named plaintiff, Haseena Bi, concluding that she did not own her property. In August 2006, the Second Circuit Court of Appeals affirmed the judgement in a summary order.

During the Bano hearings, in June of 2004 the Indian Government submitted a letter to the court stating that: “Pursuant to the ‘polluter pays’ principle recognized by both the United States and India, Union Carbide should bear all of the financial burden and cost for the purpose of environmental clean-up and remediation. The Union of India and the State Government of Madhya Pradesh shall not bear any financial burden for this purpose.” It was not easy to get the Indian government to send this certificate: it was issued only after six days of waterless fast by two survivors and one Bhopal campaigner.

In 2004 another group of survivors filed a related class action lawsuit, “Sahu v. Union Carbide Corp.” (referred to as “Sahu I”), also in the Federal Southern District Court of New York (SDNY). In addition to EarthRights International and Sharma & Deyoung LLP, the plaintiffs were also represented by the Law Offices of Curtis V. Trinko and Cohen Milstein Sellers & Toll PLLC.

Sahu I asserted personal injury claims. The plaintiffs sought the following as a result of Union Carbide’s indiscriminate dumping of toxic waste:

  1. Damages for personal injury
  2. Medical monitoring
  3. A court order obliging Dow Chemical/Union Carbide to clean up the site and to provide drinking water supplies for affected residential areas

In November 2006, the SDNY trial court granted summary judgment to the defendants (Union Carbide), finding them not liable for damages alleged. After appeals, on June 27, 2013, the Second Circuit Court of Appeals, in very controversial circumstances, affirmed the District Court order granting summary judgment to the Union Carbide Corporation.

In reaction to this decision, Louise Christian, an award-winning British human rights lawyer, stated: “This decision to deny justice to poor and vulnerable people caused irreparable harm by big business should shame the world. The US appeals court has ignored compelling evidence about the central role played by the Union Carbide Corporation based in the US in equipping, overseeing and enabling the Indian offshoot of the company to produce UCC’s own product.” She also added that, “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 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.”

While Sahu I was on appeal in 2007, Sahu II was filed with the SDNY court, asserting property damage claims. The named plaintiffs in Sahu II were not identical to those in Sahu I but, because the facts at issue in the cases are similar, the District Court granted the plaintiffs’ motion to stay, or suspend, Sahu II while Sahu I proceeded through the courts.

In June 2013, after the Second Circuit’s summary dismissal of Sahu I, UCC moved for summary judgment, arguing that Sahu II should be dismissed on the same grounds as Sahu I. But, the Sahu II plaintiffs opposed that motion, and in late January 2014 presented new evidence of UCC’s responsibility that was not before the Court in Sahu I. “This evidence demonstrates that Union Carbide was intimately involved in every aspect of designing and building the Bhopal plant, including the waste disposal systems,” said Rick Herz, counsel for the plaintiffs and Litigation Coordinator for EarthRights International.

On July 30, 2014, the District Court granted summary judgment in Sahu II.  In his decision, Judge Keenan improperly dismissed Couvaras’s declaration – which he described as unsupported – despite the fact that judges are not supposed to weigh the persuasiveness of evidence at the summary judgment stage. In August 2014, the plaintiffs filed an appeal with the Second Circuit Court and were confident that the compelling evidence would lead to a reversal and, because judges are not supposed to ignore or weigh evidence without letting a jury hear the case, believed that the Second Circuit would be compelled to correct this error.

The plaintiffs appeal was heard in November 2014 in the U.S. Court of Appeals for the Second Circuit, contesting the lower court’s decision that UCC could not be sued for ongoing pollution.

Plaintiff’s Brief: CLICK Reply Brief: CLICK

Now, with the petition dismissed it looks like Sahu II has also come to a very unsavoury conclusion.

After Judge Keenan’s dismissal, in July 2014, Marco Simons, Legal Director of EarthRights International, assisting the Bhopal plaintiffs in the case said:

“After the Bhopal debacle, Union Carbide packed up and left a mess that’s still poisoning residents and their environment, and its mess is now Dow’s problem. People living near the plant continue to suffer physical ailments, live on contaminated property, and drink poisoned water. Not only have the victims been denied justice at every door they’ve knocked on, they have also been sued for seeking justice in the first place.”  

For further detail on the three contamination cases heard before Judge Keenan in New York please see the International Campaign for Justice site: CLICK

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.