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Monsanto could not have foreseen PCB risk, court affirms


A federal appeals court on Friday upheld a lower court ruling that biotech giant Monsanto Co. could not have foreseen the risk of alleged contamination from PCBs in a Massachusetts middle school.

The 1st U.S. Circuit Court of Appeals in Boston ruled in Town of Westport v. Monsanto Co. that the Massachusetts town had “failed to raise a genuine dispute as to the merits of its breach of warranty claim or its negligence claim.”

The case dates from 1969, when Westport Middle School was built. The contractor, which is not a defendant in this suit, used caulk that contained PCBs, court records state. Although Monsanto did not make the caulk, it sold plasticizers — a component of caulk — to the third-party manufacturer that did.

The legacy Monsanto Co., which produced agricultural, chemical and pharmacy products, was spun off in the 1990s into three entities: Monsanto, Solutia and Pharmacia. All three companies are named in the Westport lawsuit.

Monsanto began to manufacture and sell PCB mixtures trademarked as Aroclors, in 1935, court records said. Aroclors were a popular plasticizer, an additive used in building materials to increase fluidity. By August 1970, however, Monsanto pulled PCB-containing Aroclors from the market because of their environmental impact.

In 2010, court records state, Westport took part in the Massachusetts State Building Authority’s Green Repair Program to renovate the middle school’s windows and roof. In preparation, Westport tested the building for hazardous substances, including PCBs. The tests indicated the presence of PCBs in the window glazing, exterior window caulking and interior door caulking.

Westport began a multimillion-dollar remediation project to remove the PCBs and brought suit against Pharmacia for the costs, alleging that Pharmacia was liable for what the town claims was “property damage” caused by the “PCB contamination” at the middle school.

Westport sued Monsanto Co., Pharmacia Corp. and Solutia Inc. in 2014 in the U.S. District Court in Boston. The District Court judge ruled against Westport on all alleged counts of tort liability. On appeal, Westport challenged only the entry of judgment against its breach of warranty and negligent marketing claims.

The appeals court ruling said Westport “misses the point” of the lower court’s decision, saying that it did not hold that a property damage claim can only be brought when there is a risk to human health, but “merely ruled that the PCB contamination in this case needed to rise to a level requiring remediation — that is, a level harmful to human health — in order to qualify as property damage.”

“We affirm the district court’s grant of summary judgment,” the appeals court said in its decision. “Monsanto did not breach the implied warranty of merchantability because it was not reasonably foreseeable in 1969 that there was a risk PCBs would volatilize from caulk at levels requiring remediation — that is, levels dangerous to human health. And as a matter of state law, a negligent marketing claim cannot be maintained independent of a design defect claim on these facts.”

"The court of appeals has correctly upheld the district court's ruling on the merits. As the Court correctly notes, Monsanto manufactured PCBs as a legal and useful product between 30 and 80 years ago. This is a solid ruling that affirms that the speculative claims by the plaintiffs have no merit,” a Monsanto spokeswoman said in an email.

A lawyer representing Westport did not respond to a request for comment.