Washington State Court Reinstates $185 Million PCB Verdict

To be clear, PCBs are not in the same chemical family as per- and polyfluoroalkyl substances (PFAS/PFOA). The long-running PCB litigation is, however, in some ways, the origin story for all “forever chemical” lawsuits. It may also be a harbinger of things to come. 

Mystery illnesses linked to PCB contamination

In 2011, SVEC moved to a building, built in the late 1960s, that was formerly used as a middle school. At the time of the move, the plaintiff teachers were reportedly in good health and full of energy. Soon thereafter, however, the teachers began to report a variety of symptoms, including headaches, rashes, fatigue, blurred vision, memory, sinus, and respiratory issues. Students and parents reported similar symptoms – all indications of neurological injury. The teachers also reported brown liquid oozing from the fluorescent light fixtures. The problem, as it gradually became clear, was PCB contamination.

The teachers, who are among a group of 200 people who reported injuries, filed their lawsuit in 2021. At trial, they introduced expert testimony about the presence of PCBs in the school building into which SVEC had moved, especially in the oozing lighting fixtures and caulk. That building underwent two years of remediation starting in 2014 to remove the aging light ballasts and carpet and improve ventilation. The debate about whether the remediation was adequate has continued.

Widespread, long-term environmental poisoning – sound familiar?

For decades, PCBs were used in electrical equipment like lighting fixtures, industrial fluids and building materials, such as caulk, paint, adhesives and ceiling tiles. They are chemically stable, non-flammable, and excellent electrical insulators and were widely used in schools, it appears, because those buildings are designed to last for decades. Durability is great one might argue, but PCBs are also poisonous and can take hundreds of years to degrade naturally.

Most uses of these chemicals were banned in 1979 because of their toxic effects on the immune, reproductive, nervous, and endocrine systems in people and other organisms. PCBs also cause cancer in animals and are likely to cause cancer in people.
PFAS were similarly manufactured and widely used for decades before regulators stepped in to ban or limit their use. But by then, of course, the toxic chemicals had spread into the environment, and the human damage had been done.

Who knew what and when?

Monsanto, as it existed prior to a complicated series of mergers and spinoffs that produced Pharmacia, manufactured PCBs from the 1930s to 1977. As far back as the 1930s, plaintiffs argued, Monsanto knew that PCBs caused “systemic toxic effects” and even death. With profits on the line, however, Monsanto continued to tell regulators and customers that PCBs were no more dangerous than “common table salt.”

By the mid-60s, however, researchers were reporting evidence that PCBs were as dangerous as DDT. Further, they had reportedly escaped into the environment and were showing up in tests of children’s hair. In 2009, when the EPA issued guidance that detailed its concern about PCBs, Monsanto continued to insist that “[T]he weight of scientific evidence does not support any causal link” between PCBs and any “significant human illnesses.”

Although the teachers’ litigation strategy focused on Monsanto, there was evidence that the school district was also aware, as early as 2014, that PCB contamination posed serious health risks for the teachers, other school personnel and students in the building.

A fine legal point of timing

The Washington State Supreme Court’s reinstatement of the plaintiff’s $185 million award turns on a reversal of an apparently arcane choice of law question having to do with a statute of repose,” which is somewhat similar to statutes of limitation. The lower court had applied a Washington “statute of repose” to find that the plaintiffs’ claims were time-barred.

The Washington Supreme Court found that, while Washington law applied to the issue of liability, Missouri law, under which the teacher’s claims were not time-barred, was the correct law to apply to the issue of time limits. Monsanto requested a new trial, which the Washington Court denied.  

Takeaways for PFAS plaintiffs

The PCB lawsuits may have two important lessons for PFAS litigants. First, it is possible to win these cases. Second, however, suing a deep-pocked defendant may take a very long time and may require some sophisticated lawyering.