City of Seattle v. Monsanto Company

HONORABLE RICHARD A. JONES — 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — — 8 — — 9 — — 10 — — 11 — — 12 — 13 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 14 AT SEATTLE 15 CITY OF SEATTLE, 16 Plaintiff, Case No. 2:16-cv-00107-RAJ 17 v. ORDER DENYING MOTION 18 FOR SUMMARY JUDGMENT MONSANTO COMPANY, et al., — 19 — Defendants. — 20 — — 21 — I. Introduction — 22 — This matter is before the Court on Defendants’ Motion for Summary Judgment — 23 — (“motion”). Dkt. # 326. Having reviewed the briefing on the motion, and the — 24 — accompanying evidence, the Court DENIES the motion. — 25 — II. Background — 26 — This case arises out of Defendants’ manufacture and sale of polychlorinated — 27 — biphenyls (“PCBs”). Through this lawsuit, the City of Seattle (“City”) seeks to hold Defendants liable for PCBs that have escaped from their use in industrial and commercial — 1 — applications into the Lower Duwamish Waterway (“LDW”) and the City’s stormwater — 2 — and drainage systems. (See Second Am. Compl. (Dkt. # 267) at ¶¶ 5-15.) The City’s sole — 3 — remaining cause of action alleges Defendants intentionally manufactured, distributed, — 4 — marketed, and promoted PCBs in a manner that created a public nuisance harmful to the — 5 — health and free use of the LDW and the City’s stormwater and drainage systems. (Id. at — 6 — ¶¶ 91-108.) — 7 — Defendant Pharmacia LLC (a/k/a “Old Monsanto”) was the sole producer of PCBs — 8 — in the United States from the 1930s until they were banned by Congress in 1977. Dkt. # — 9 — 450-14 at 3. Defendants Monsanto Company and Solutia, Inc. are the successors of Old — 10 — Monsanto. Dkt. # 442 at 39-40 (SOF ¶ 65); Dkt. # 450-9, Dkt. # 450-10; Dkt. # 450-12. — 11 — Monsanto maintained a plant in Seattle and sold PCBs and PCB-containing products to — 12 — Seattle customers around and adjacent to the LDW. See, e.g., Dkt. # 446-11 at 5-18; Dkt. — 13 — # 447-12; Dkt. # 447-13; Dkt. # 447-14. PCBs have been detected in seventy-five percent — 14 — of 1,504 subsurface sediment samples, and in ninety-four percent of 1,390 surface — 15 — sediment samples collected from sediment in the LDW. Dkt. # 450-15 at 8; Dkt. # 450-16 — 16 — at 6. The City alleges that PCBs entering the LDW, including through the City’s drainage — 17 — systems, will remain in the LDW until remediated. See Dkt. # 450-21 at 3. The City — 18 — estimates that in most of the environmental compartments analyzed, more than 95% of — 19 — the PCBs in the LDW are Monsanto’s PCBs. Dkt. # 450-17 at 5. — 20 — The City alleges Monsanto knew its PCBs would get into the environment and — 21 — waterbodies, such as the LDW, through their ordinary use, and that Monsanto’s — 22 — knowledge was based in part on its sales of PCBs to businesses near the LDW and its — 23 — own use of PCBs at its plant adjacent to the LDW. See, e.g., Dkt. # 447-2 at 22-24; Dkt. # — 24 — 448-15 at 8. The City alleges it has incurred past costs, and will incur future costs, for — 25 — investigation and remediation of the LDW, its source control efforts in the LDW, and for — 26 — the design and construction of a stormwater treatment plant to reduce PCBs from one — 27 — drainage basin adjacent to the LDW. See, e.g., Dkt. # 446 at ¶ 3; Dkt. # 450-15 at 4, 29; — 1 — Dkt. # 451-3 at 21-24; Dkt. # 451-12; Dkt. # 451-14 at 23, 27-28; Dkt. # 452-7. — 2 — III. Legal standard — 3 — “A party may move for summary judgment, identifying each claim or defense—or — 4 — the part of each claim or defense—on which summary judgment is sought.” Fed. R. Civ. 5 P. 56 (a). “The court shall grant summary judgment if the movant shows that there is no — 6 — genuine dispute as to any material fact and the movant is entitled to judgment as a matter — 7 — of law.” Id. A material fact is relevant to an element of a claim or defense and whose — 8 — existence might affect the outcome of the suit. See Matsushita Elec. Indus. Co., Ltd. v. — 9 — Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The materiality of a fact is determined — 10 — by the substantive law governing the claim or defense. See Anderson v. Liberty Lobby, — 11 — Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). — 12 — The party moving for summary judgment “bears the burden of establishing the — 13 — basis for its motion and identifying evidence that demonstrates the absence of a genuine — 14 — issue of material fact.” Davis v. U.S., 854 F.3d 594, 598 (9th Cir. 2017) (citing Celotex, — 15 — 477 U.S. at 323); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 153 (1970). For — 16 — “an issue on which the nonmoving party bears the burden of proof,” the movant — 17 — discharges its summary judgment burden by “pointing out ... an absence of evidence to — 18 — support the nonmoving party’s case”—not by “negating the opponent’s claim.” Celotex, — 19 — 477 U.S. at 323, 325; see also Sluimer v. Verity, Inc., 606 F.3d 584, 586 (9th Cir. 2010). — 20 — The burden shifts to the nonmovant to provide admissible evidence, beyond the — 21 — pleadings, of specific facts showing a genuine issue for trial. See Anderson, 477 U.S. at 22 256; Horphag Res. Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007); see also Cafasso, — 23 — U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (“[A] — 24 — plaintiff must set forth non-speculative evidence of specific facts, not sweeping — 25 — conclusory allegations.”). The nonmovant’s evidence is to be believed, and all justifiable — 26 — inferences are to be drawn in its favor. See Anderson, 477 U.S. at 255 . A nonmovant — 27 — “defeat[s] summary judgment” if “a reasonable juror drawing all inferences in favor of — 1 — the respondent could return a verdict in the respondent's favor.” Zetwick v. Cty. of Yolo, — 2 — 850 F.3d 436, 441 (9th Cir. 2017). — 3 — IV. Analysis — 4 — The City alleges that Monsanto created a public nuisance by manufacturing, — 5 — marketing, and distributing toxic chemicals that have contaminated the LDW, as well as — 6 — Seattle’s drainage lines. RCW 7.48.010 defines an “actionable nuisance” as anything — 7 — “injurious to health” that “obstruct[s] the free use of property, so as to essentially — 8 — interfere with the comfortable enjoyment of the life and property.” An act that “obstructs — 9 — or tends to obstruct” or “render[s] dangerous for passage, any lake or navigable river, — 10 — bay, stream, canal or basin,” is a nuisance. RCW 7.48.120. RCW 7.48.130 further defines — 11 — a “public nuisance” as “one which affects equally the rights of an entire community or — 12 — neighborhood, although the extent of the damage may be unequal.” RCW 7.48.140(2) — 13 — specifically declares that it is a public nuisance to “in any manner ... corrupt or render — 14 — unwholesome or impure the water of any such spring, stream, pond, lake, or well, to the — 15 — injury or prejudice of others.” The question at summary judgment is whether there is — 16 — evidence sufficient to raise an issue of material fact as to the elements of the City’s public — 17 — nuisance claim. The parties have taken 59 depositions, exchanged over 5 million pages of — 18 — document discovery, and offered 58 expert reports. There is admissible evidence and — 19 — expert testimony to create an issue of fact as to each element of the City’s public nuisance — 20 — claim. Viewed in the light most favorable to the City, this evidence requires the Court to — 21 — deny Defendants’ motion. — 22 — First, Defendants do not dispute that it produced toxic chemicals or that those — 23 — chemicals are present in Seattle’s water. Rather Defendants primarily argue that (i) the — 24 — City cannot bring claims against New Monsanto and Solutia; (ii) the City cannot establish — 25 — the requisite intent; (iii) the City cannot show causation; and (iv) the City’s damages are — 26 — either categorical barred, voluntary, speculative, or unripe. Even on these issues, the City — 27 — provides sufficient factual evidence to create issues of fact requiring the denial of — 1 — summary judgment as discussed below. — 2 — First, Defendants have not shown that New Monsanto and Solutia should be — 3 — dismissed as a matter of law. The City asserts direct claims against New Monsanto and — 4 — Solutia, who are the successors to the original Monsanto Company that manufactured and — 5 — distributed PCBs. The City points to distribution and separation agreements that — 6 — expressly state that New Monsanto and Solutia retain and assume liabilities for Old — 7 — Monsanto’s chemical businesses. See, e.g., Dkt. # 442 at 39-40 (SOF ¶ 65); Dkt. # 450-9, — 8 — Dkt. # 450-10; Dkt. # 450-12. Furthermore, the City points to evidence that those — 9 — companies obtained substantial goodwill and intangible assets through the asset transfers. — 10 — Id. Even assuming there is some ambiguity regarding Defendants’ liability under the — 11 — agreements, they have failed to offer uncontested evidence as to the proper interpretation. — 12 — Wm. Dickson Co. v. Pierce Cnty., 128 Wash. App. 488, 494 (2005) (“summary judgment — 13 — is proper if the written contract, viewed in light of the parties’ objective manifestations, — 14 — has only one reasonable meaning”); Marshall v. Thurston Cnty., 165 Wash. App. 346 , — 15 — 351 (2011) (summary judgment not appropriate where contract terms are “fairly — 16 — susceptible to two different, reasonable interpretations”). — 17 — The next issue is intent. Monsanto argues that the City must prove “Defendants — 18 — designed, manufactured, marketed, and sold PCBs with the intent to cause the alleged — 19 — public nuisance in the LDW[.]” Dkt. # 326 at 71. As the City points out, and the Court — 20 — agrees, this is too exacting a standard. See Dkt. # 442 at 89. Under Washington law, if the — 21 — actor knows that the consequences are certain, or substantially certain, to result from his — 22 — act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the — 23 — result. Bradley v. Am. Smelting & Ref. Co., 104 Wash. 2d 677, 682 , 709 P.2d 782 , 785 — 24 — (1985). Indeed, the City provides evidence that Monsanto knew for a fact that widespread — 25 — use of the PCBs it manufactured was contaminating the environment. Dkt. # 447-2 at 2226 24; Dkt. # 448-15 at 8. And further, the City presents evidence that when Monsanto — 27 — conducted research on chronic toxicity related to PCBs, it did so only to evaluate and — 1 — protect its ability to continue manufacturing and selling PCBs. See, e.g., Dkt. # 448-6 at — 2 — 2-3. Even with the knowledge of the pollution issue related to certain PCB products, — 3 — Monsanto instructed its salespeople to avoid returns from its customers, noting “[w]e — 4 — cannot afford to lose one dollar of business.” Dkt. # 449-5 at 3. The City has more than — 5 — met its burden on intentionality to avoid summary judgment on its public nuisance claim. — 6 — The next issue is causation. Monsanto urges the Court to find that other PCB — 7 — producers caused the contamination of Seattle’s water, and/or that the intervening acts of — 8 — third parties – namely, improper disposal of PCB products – cut off proximate causation. — 9 — The Court is not persuaded. The City provides evidence that Monsanto’s PCBs comprise — 10 — over 99% of PCBs in LDW sediment, surface water, groundwater, and the tissue of — 11 — organisms from the LDW, and over 95% of PCBs in stormwater drainage pipes — 12 — connected to the LDW. See, e.g., Dkt. # 442 at 43 (SOF ¶ 77); Dkt. # 450-17 at 5. — 13 — Furthermore, Monsanto does not argue that it is responsible for none of the PCBs in — 14 — Seattle’s water; the existence of other PCB sources merely creates a question of fact — 15 — regarding the amount of damages for which Monsanto is responsible. — 16 — Finally, given the potential costs at stake, it is no surprise that the parties briefing — 17 — on damages spans almost 100 pages. The City seeks four categories of damages and costs — 18 — in this action: (1) past and future costs to investigate and remediate in-water PCB — 19 — contamination in the LDW; (2) past and future costs to control ongoing sources of PCBs — 20 — to the City’s drainage systems; (3) past and future costs to treat stormwater to reduce the — 21 — PCB load sufficiently to prevent recontamination of the LDW after cleanup; and, (4) — 22 — costs to mitigate the harm from PCBs to members of the public pending permanent — 23 — abatement of the public nuisance. See, e.g., Dkt. # 442 at 51 (SOF ¶ 111). — 24 — As they did in their motion to dismiss, Defendants argue again that the plain — 25 — language of RCW 7.48.210 and RCW 7.48.220 only authorize a private person to bring a — 26 — civil action to remedy a public nuisance in the event the public nuisance is specially — 27 — injurious to him or her. RCW 7.48.210. This issue was previously addressed by Judge — 1 — Lasnik in this case, and the Court finds no reason to change its prior ruling, which is — 2 — consistent with other courts that a municipality’s public nuisance case for damages can — 3 — go forward. City of Seattle v. Monsanto Co., 237 F. Supp. 3d 1096, 1106 (W.D. Wash. — 4 — 2017); see also San Diego Unified Port Dist. v. Monsanto Co., 2020 WL 1479071 , at — 5 — *10-11 (S.D. Cal. Mar. 26, 2020) (denying motion for summary judgment on Port — 6 — District’s public nuisance claim despite Monsanto’s lawful sales of PCBs); City of — 7 — Spokane v. Monsanto Co., 2016 WL 6275164 , at *7 (E.D. Wash. Oct. 26, 2016) — 8 — (“Spokane unquestionably has a sufficient property interests in its wastewater and — 9 — stormwater systems to bring a nuisance action based on injurious effects to those — 10 — systems.”). The City has shown that it has standing to bring a suit for damages under — 11 — Washington law. — 12 — As for the categories of damages at issue, the Court ultimately finds that there is — 13 — sufficient evidence in the record to create a genuine issue as to each. Defendants have — 14 — made similar arguments in other PCB cases that certain remedies are speculative, barred — 15 — by federal statutes, or cannot be pursued for lack of standing. See, e.g., San Diego Unified — 16 — Port Dist., 612 F.Supp.3d 1028 , 1050 (S.D. Cal. Mar. 2020) (challenging certain — 17 — remedies as speculative and unripe); State v. Monsanto Co., 2021 WL 4877501 , at *9 — 18 — (Or. Cir. July 08, 2021) (challenging remedies as barred by CERCLA and barred as — 19 — double recovery). Defendants’ contentions here that the categories of damages sought by — 20 — the City cannot be recovered are ultimately unavailing. — 21 — The record contains more than sufficient factual evidence that the City has — 22 — suffered past remediation costs related to PCBs from which a jury could award damages. — 23 — See, e.g., Dkt. # 442 at 43-46 (SOF ¶¶ 79-87). As to the “double recovery” issue, the — 24 — record neither demonstrates nor proves that City is seeking improper “double recovery” — 25 — that may be proscribed by CERCLA. To the extent that the City seeks (through — 26 — presentation of evidence and/or argument) to recover damages that Defendants believe — 27 — are proscribed by CERCLA, they may move during trial against such a recovery. The — 1 — Court also finds that the record neither demonstrates or proves that the City improperly — 2 — seeks to enforce treaty rights or stand in the shoes of tribes or tribal members, or that the — 3 — City improperly seeks “natural resource” damages under 42 U.S.C. § 9607 (f). As the City — 4 — makes clear, the interests of triable members are relevant to the central question of — 5 — whether Defendants’ PCBs interfere with the public’s use and enjoyment of the LDW. — 6 — Dkt. # 442 at 130. Likewise, evidence about how PCBs get into fish, wildlife, and the — 7 — environment and how PCBs in these resources present a health risk to humans are — 8 — directly germane to the City’s case for damages. Id. at 135 . And as to the recovery future — 9 — remediation costs, the Court finds that the record provides a sufficient evidentiary basis — 10 — from which a jury could award non-speculative damages that are not aimed at — 11 — compensating the City for “future damages” it might suffer at a later date but to — 12 — remediate ongoing harms such as source control within the City’s stormwater in drainage — 13 — basins and other mitigation costs. See, e.g., Dkt. # 442 at 46-47 (SOF ¶¶88-96). While — 14 — nothing in this order prevents Defendants from making similar arguments during trial, the — 15 — evidence here is more than sufficient to deny judgment as a matter of law. — 16 — Finally, Defendants claim the City bears the burden to apportioning damages. Dkt. — 17 — # 326 at 134. This misstates the current law in Washington, where defendants bear the — 18 — burden of proof as to any apportionment of damages where the injuries were not — 19 — segregable among tortfeasors. Restatement (Second) of Torts § 433B(2); Cox v. Spangler, — 20 — 141 Wash. 2d 431, 443 (2000); Hue v. Farmboy Spray Co., Inc., 127 Wash. 2d 67 , 91 — 21 — (1995). The City correctly notes that if an apportionment is difficult or impossible, the — 22 — defendants have the burden of proving their individual contribution. City of Benton City — 23 — v. Adrian, 50 Wash. App. 330, 342 (1988) (citing W. Keeton, D. Dobbs, R. Keeton & D. — 24 — Owen, Prosser and Keeton on Torts § 52, at 345–46, 350 (5th ed. 1984)). Defendants’ — 25 — motion on this issue is denied. — 26 — — 27 — V. Conclusion — 1 — For the reasons above, the Court denies Defendants’ motion. Dkt. # 326. — 2 — — 3 — DATED this 2nd day of February, 2024. — 4 — A — 5 — — 6 — The Honorable Richard A. Jones — 7 — United States District Judge — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 —