US class action suits seek justice for Bhopal victims

Far away from the heat and dust of Bhopal, two federal class action lawsuits are under way here in New York City.

The Bhopal cases filed in the US have had a circuitous history, not unlike in India.

The cases, Sahu vs Union Carbide et al, are civil cases filed in the United States District Court for the Southern District of New York. Plaintiffs are seeking remediation to address personal injury and damage to property. They are also fighting for medical monitoring. They claim that UCIL?s Bhopal plant produced hazardous wastes during its normal operations that contaminated the soil and drinking water of local communities. These cases are different from the claims arising soon after the 1984 disaster. Those initial claims were thrown out on grounds of forum non conveniens?a doctrine where the district court refused to take jurisdiction over the matter citing a more appropriate forum available to the parties.

In their complaint filed in 2004, plaintiffs Janki Bai Sahu et al, have said that UCC and its former CEO Warren Anderson should be held liable for their injuries on the grounds that they were ?direct participants and joint tortfeasors in the activities that resulted in the pollution, that UCC worked in concert with UCIL to cause, exacerbate, or conceal the pollution and that UCIL acted as UCC?s alter ego, justifying piercing the corporate veil?. Richard L Herz of Earth Rights International and co-counsel in the Sahu case said, ?The aim is to establish that UCC and Warren Anderson are liable for the pollution that has contaminated the plaintiffs? drinking water and that of thousands of their neighbours.?

At present, UCC maintains that the company cannot be held liable for the actions of the Indian subsidiary. ?By requirement of the GoI, the Bhopal plant was detail designed, owned, operated and managed on a day-to-day basis by UCIL and its employees,? Tomm F Sprick, director of the Union Carbide Information Center, said in an email. The company has chosen to ?recharacterise 20 years of its association with UCIL, as a period of minimum involvement,? H Rajan Sharma and lead counsel in the Sahu litigation said by contrast.

The plaintiff lawyer has cited company documents dating back to 1973 to demonstrate UCC?s involvement with the Indian subsidiary. ?UCC was intimately involved in all aspects of the Indian operation that caused the pollution that continues to contaminate drinking water in Bhopal. It transferred technology that was inadequate, approved plans for design of the plant and participated in the creation of the toxic landfill that ultimately failed,? he said.

The journey of these cases through US legal system has gone on for the better part of this decade, but the cases could force the Indian government to get involved. On June 24, 2008, the Indian government communicated to the District Court that they would cooperate with any cleanup by the UCC. ?But that has not proven to be sufficient,? Sharma said. In the past, the District Court, which is the lower court, was of the opinion that a US court may have trouble issuing a binding enforcement for an environmental cleanup in another country, because the court believed this could interfere with sovereignty. ?Although the Plaintiffs do not believe that such concern is warranted, for this reason, the Union of India?s participation has been sought in the action,? Matthew K Handley, attorney with Cohen Milstein Sellers & Toll PLLC, said.

The case would essentially mean that UCC, now a wholly owned subsidiary of The Dow Chemical Company, could be held liable under a principle known as piercing the corporate veil. In the past, the District Court has said that there was no evidence that UCC was directly responsible for the actions occurring in Bhopal. Usually a corporation is solely responsible for its liabilities. But under exceptional circumstances, the corporation may be held responsible for the liabilities of its shareholders and directors and in this case a subsidiary, thus piercing the corporate veil. Lawyers are banking on the plea that UCC?s domination of UCIL should give rise to a piercing of the corporate veil claim and thus make it liable for its Indian operations.

Unlike before, forum non conveniens may no longer be an escape route. Actions of the company are under the jurisdiction of the District Court since UCC was incorporated in the state of New York. Also, UCC has been criminally indicted in India and will never suggest that the case be moved to India. US district judge JF Keenan presided over the case in the 1980s when the case was sent to India on the grounds of forum non conveniens. He said that the court was convinced that the Indian legal system was in a far better position than the American courts to determine the cause of the tragic event and thereby fix liability. He continues to preside over the ongoing cases at the District Court now. This court is an influential one; under its jurisdiction are the major financial centers of New York. Usually, a publicly traded company whose shares are traded on NYSE falls under the jurisdiction of this district court.

The author is a journalist, working in Switzerland