Milwaukee judge allows city’s nuisance contamination lawsuit against Monsanto to proceed

MILWAUKEE (CN) — A Milwaukee judge on Thursday preserved most of the city’s lawsuit against Monsanto and other companies over accusations they polluted Milwaukee water systems with toxic chemicals linked to serious and fatal health conditions.

The Milwaukee Metropolitan Sewerage District, along with the city itself, sued Monsanto in September over ongoing contamination by PCBs or polychlorinated biphenyls — tasteless, odorless organic chemicals used in a variety of industrial and commercial applications from 1929 until they were banned in 1979.

Studies have linked the human-made toxic compounds to multiple cancers in humans, as well as immune, reproductive and neurological maladies in monkeys and other animals.

The chemicals’ heavily chlorinated structure makes them highly resistant to degradation once they enter the environment. Experts say most people are exposed to PCBs by eating contaminated foods like meat, fish, dairy and poultry.

The plaintiffs claim the agrochemical giant knowingly concealed the risks of PCBs from the general public despite being aware since at least the 1930s that the chemicals were dangerous.

They claim PCBs entered the Milwaukee environment through a variety of industrial sources, such as construction materials like caulk and fluids in electrical transformers. They say another major source was Milorganite, a trade-name fertilizer once used in Milwaukee County parks and school athletic fields.

Also among the defendants are Pharmacia and Solutia, owned by Pfizer and the Eastman Chemical Company, respectively.

Monsanto promptly called the plaintiffs’ lawsuit meritless and denied responsibility for the contamination, claiming they stopped manufacturing PCBs nearly 50 years ago and never made or disposed of them in the Milwaukee area anyway.

Milwaukee County Circuit Court Judge Glenn Yamahiro denied the defendants’ motion to dismiss with the exception of one product liability claim, which was tossed. The judge found the claim deficient because it concerned design defects, whereas the alleged dangers caused by PCBs have to do with the chemicals’ inherent properties — not defective design.

Russell Balikian, an attorney for the defense with the Washington office of the firm Gibson, Dunn & Crutcher, argued that the plaintiffs’ claims were untimely and — even if they were not — could not be applied to the defendants.

Citing Wisconsin case law, Balikian attempted to draw a distinction between a continuing nuisance and a permanent nuisance. The plaintiffs incorrectly allege a continuing nuisance, he said, stressing there was no new harm or conduct and that “nothing new that warrants restarting the statute of limitations.”

Just because Pharmacia, for example, manufactured PCBs 50 years ago does not make them liable for Milwaukee’s contamination issues, Balikian said. He said a number of intervening third parties in the chemicals’ manufacturing process makes the defendants too far removed from the contamination to make them responsible.

Balikian also tried to argue that nuisance tort law cannot apply to the plaintiffs’ PCB-related claims because the chemicals cannot be detected with the senses. Yamahiro did not seem to buy that line of argument, questioning why a nuisance claim over contaminated water would be barred simply because one cannot taste the contamination.

Ted Warpinski, the city and sewage district’s lawyer with the Milwaukee-based Halling & Cayo firm, said the crux of the case was that the defendants knew PCBs were toxic and failed to warn the public. The nuisance is ongoing, he said — and until the harms are abated, his clients’ claims are viable.

Yamahiro agreed with this latter point in his oral ruling, saying that “every day is a new cause of action and a new harm” as long as the alleged pollution goes unabated.

Among other things, the city and sewerage district, which provides wastewater and flood management services for around 1.1 million people in the metro Milwaukee area, are seeking compensation for the costs of remediating PCB contamination — figures which amount to millions of dollars.

Contamination cleanup efforts undertaken by the EPA and Wisconsin Department of Natural Resources, including those targeting the Milwaukee Estuary, have already nearly filled a disposal facility in the city. A new facility projected to cost more than $100 million is currently being built in the Milwaukee Harbor, according to the sewerage district.

At the conclusion of Thursday’s hearing, a status conference in the case was scheduled for June 17.

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