Clair v. Monsanto Co.

Citation412 S.W.3d 295
Decision Date26 November 2013
Docket NumberNo. ED 99246.,ED 99246.
PartiesSanford CLAIR, Plaintiff, Ruth Nishida, Alison Tucker and Nicholas White, Individually and as Representative of the Estate of Mark White, Deceased, Appellants, v. MONSANTO COMPANY, Defendant, and Pharmacia Corporation, Respondent.
CourtCourt of Appeal of Missouri (US)

OPINION TEXT STARTS HERE

John G. Simon, St. Louis, MO, Steve Jensen, Dallas, TX, for Appellant.

Mark G. Arnold, Thomas M. Carney, Carol A. Rutter, Adam E. Miller, Clayton, MO, David M. Axelrad, Dean M. Bochner, Encino, CA, for Respondent.

Mark I. Bronson, St. Louis, MO, Brent M. Rosenthal, Dallas, TX, for Amici Curiae.

ROBERT G. DOWD, JR., Presiding Judge.

Ruth Nishida, Alison Tucker, and Nicholas White, Individually and as Representatives of the Estate of Mark White (Plaintiffs), appeal from the trial court's grant of summary judgment in favor of Pharmacia Corporation (“Pharmacia”). Plaintiffs contend the trial court erred in granting summary judgment with respect to Plaintiffs' cause of action brought under California law for design defect because: (1) the post-use disposal of polychlorinated biphenyls (“PCBs”) was foreseeable; and (2) the foreseeable and intended uses of Pharmacia's “open use” PCBs resulted in releases into the environment, which, in turn, resulted in an increase in Plaintiffs' risk of developing Non–Hodgkin's Lymphoma. Plaintiffs further contend the trial court erred in granting summary judgment with respect to negligence because Plaintiffs established Pharmacia owed a duty of reasonable care. We reverse and remand.

Plaintiffs are either California residents who developed lymphohematopietic cancer or the survivors of California residents who died after developing lymphohematopietic cancer. Plaintiffs allege their exposure to PCBs designed, manufactured, and distributed by the original Monsanto Company 1 (Old Monsanto) was a substantial factor in the cause of their cancer.

From 1901 to 1997, Old Monsanto manufactured a variety of chemical and agricultural products, including PCBs. PCBs are a class of 209 discrete chemical compounds called congeners in which one to ten chlorine atoms are attached to biphenyl. Old Monsanto made more than 99 percent of all the PCBs that were ever manufactured and sold in the United States.2 There are no known natural sources of PCBs in the environment.

PCBs were designed to be resilient to heat and chemical breakdown. As a result of this resilience, PCBs are commonly found in the environment to this day, even though their manufacture and sale in the United State was banned over thirty years ago. Some PCBs entered the environment because they were incorporated into “open use” products, such as paints, varnishes, adhesives, hydraulic fluids, and carbonless copy paper. These “open use” products allow for the release of PCBs during the use of the PCB-containing products themselves. Other PCBs entered the environment as waste following disposal of manufacturing by-products and end-use products that contained PCBs.

According to the affidavit of Plaintiffs' expert, Dr. David Rosner, Pharmacia knew as early as 1938 that PCBs were systemically toxic and could cause acute toxicity problems, given sufficient exposure. In the 1940s, DDT, a similar chemical, was first detected in animal tissue. In 1966, using new technology, scientists discovered PCBs in animal tissue in Sweden. Subsequently, PCBs were found in birds in the United States in 1968. Before these discoveries, Pharmacia made no effort to test for PCBs in the environment or to determine the long-term health effects of PCBs. In 1970–71, Pharmacia ceased the use of PCBs in “open use” products. The manufacture and importation of PCBs as well as the production and repair of PCB transformers were banned in 1979. Some PCBs that were manufactured prior to 1979 are still in use in transformers today. However, the current danger from PCBs comes from their presence in the environment. Dr. Rosner testified, based on his review of internal Pharmacia documents, Pharmacia had actual knowledge many of its PCBs would be released into the environment by third parties. Dr. Rosner cited to one document from 1969, after it was known the PCBs were accumulating in the environment, where Pharmacia noted [i]t has been recognized from the beginning that other functional fluid uses could lead to losses of [PCBs] to liquid waste streams from the customers' plants. Losses could occur from spills, from unusual leakage of large volumes and daily losses of smaller volumes.” Dr. Rosner further opined Pharmacia should have been aware that standard industrial waste disposal practices from the 1930s to the 1960s resulted in huge quantities of PCBs being released into the environment as waste.

Plaintiffs allege analyses of their blood showed each had elevated levels of several different PCBs in their blood. Pharmacia's expert, Dr. Terry Troxell, testified he knew “with a certainty that [Pharmacia's] PCBs are in the American food supply.” In addition, Dr. Troxell testified he knew with certainty that all Plaintiffs “have [Pharmacia's] PCBs in their bodies” or had them in their bodies before they died. Studies have linked elevated PCB levels with an increased risk of developing Non–Hodgkin's Lymphoma.

As a result, Plaintiffs filed suit against New Monsanto, Solutia, Pharmacia, and Pfizer (collectively Defendants) alleging strict liability for design defect and negligence.

After this suit was initiated and Defendants filed answers and affirmatives defenses, the trial court dismissed New Monsanto, Solutia, and Pfizer from the case without prejudice, but allowed Plaintiffs to proceed against Pharmacia. Thus, as noted above, Pharmacia is the only remaining defendant in this litigation.

In their negligence claim, Plaintiffs allege Defendants were negligent in marketing and distributing various PCB products when they were aware or should have been aware of the hazards of PCBs and either knew or should have known the PCBs would be released into the environment. In their strict liability claim, Plaintiffs allege the PCBs were defectively designed because as a result of the foreseeable dumping of those PCBs and PCB-containing products and also the incorporation of PCBs into “open-use” products, the PCBs made their way into the environment and into the food chain. Plaintiffs contend as a result of Defendants' negligence and the defective design, they were exposed to PCBs, which was a substantial factor in the development of their cancer. Plaintiffs also assert their claims are governed by California law because their cancer developed while they were living in California. Plaintiffs seek compensatory and punitive damages.

Pharmacia subsequently filed a motion for summary judgment. Pharmacia argues, with respect to the negligence claim, it had no duty to protect Plaintiffs from the conduct of downstream users of PCBs or from injuries related to the presence of PCBs in the environment. With regard to the strict liability claim, Pharmacia asserted: (1) Plaintiffs cannot prove they were harmed as a result of an intended or foreseeable use of the product; (2) Plaintiffs have no evidence as to what PCBs they were exposed to, and therefore, the risk versus benefit analysis to determine whether the product was defective cannot be applied, and; (3) if the court determines there is no duty in negligence, then there is no duty in strict liability.

The trial court entered its judgment granting summary judgment in favor of Pharmacia. The trial court set out the undisputed facts in its judgment. The trial court found Pharmacia defined its category of conduct as the duty to protect Plaintiffs from the conduct of downstream users of PCBs and/or injuries caused by the presence of PCBs in the environment. The trial court also found because Plaintiffs could not specify when the PCBs in their blood were manufactured or what path they took from manufacturer to each Plaintiff, holding Pharmacia owed them a duty would mean Pharmacia was an insurer of its products for all places, times, and conditions. Thus, the trial court found public policy supported a finding of an exemption to the general duty rule for this category of conduct. In addition, the court noted the connection between Pharmacia's conduct and Plaintiffs' injuries was not sufficiently close to weigh strongly in favor of imposing a legal duty on Pharmacia, and Pharmacia could not reasonably foresee its conduct would harm Plaintiffs. Further, the trial court noted the excessive burden imposing a duty would create for Pharmacia, which would be forced to defend against a potentially “limitless pool of plaintiffs,” weighed against the imposition of such a duty. Lastly, the trial court noted nothing the trial court did could prevent or mitigate future injuries because the PCBs were already in the environment. Thus, the trial court found as a matter of law that Pharmacia owed no duty to Plaintiffs and granted Pharmacia's motion for summary judgment on the negligence claim.

As for the strict liability design defect claim, the trial court found, as a matter of law, Pharmacia cannot be held strictly liable to 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. Thus, after finding Plaintiffs had not and would not be able to produce evidence sufficient to allow the trier of fact to find intended and foreseeable uses of PCBs were a substantial factor in causing their injuries, the trial court granted summary judgment against Plaintiffs on their strict liability claim.

Plaintiffs subsequently filed a motion for new trial, which was denied by operation of law. This appeal follows.

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4 cases
  • Bailey v. Monsanto Co.
    • United States
    • U.S. District Court — Eastern District of Missouri
    • March 31, 2016
    ...that Missouri tort law might impose liability on Pharmacia (Old Monsanto) based on the facts alleged. See Clair v. Monsanto Co ., 412 S.W.3d 295 (Mo.Ct.App.2013) (holding that under California tort law, which is the same as Missouri law for relevant purposes, claims of strict liability and ......
  • Kesner v. Superior Court of Alameda Cnty.
    • United States
    • California Court of Appeals Court of Appeals
    • May 15, 2014
    ...imposition of a duty serves as a warning for manufacturers creating potentially dangerous products to be cautious.” (Clair v. Monsanto Co., supra, 412 S.W.3d at p. 309.) It is the next two Rowland factors—the extent of the burden to the defendant and the consequences to the community if the......
  • Brizendine v. Bartlett Grain Co.
    • United States
    • Missouri Court of Appeals
    • December 22, 2015
    ...Kennedy v. Dixon, 439 S.W.2d 173, 185 (Mo. banc 1969) ). Missouri law governs all procedural issues in the case. Clair v. Monsanto Co., 412 S.W.3d 295, 303 (Mo.App.2013). ANALYSIS In her first six points, Brizendine argues that the court abused its discretion by refusing to give the jury an......
  • Labriola v. Lawson
    • United States
    • Missouri Court of Appeals
    • November 26, 2013

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