Handling PCB Litigation

Trial Magazine/May 1989

Handling PCB Litigation

Alan C. Milstein

Polychlorinated biphenyls (PCBs) are a "mad dog" of the environment, said former Congressman Gilbert Gude (R-Md.) during debate on the Toxic Substance Control Act in 1976.

In approving the legislation which singled out only PCBs by name, Congress recognized what many scientists already knew: The same qualities that made PCBs useful as a coolant and a lubricant in electrical transformers and capacitors - they are extremely stable and persistent even under intense heat - harm any environment or organic system that they enter. Their resistance to bio-degradation allows them to accumulate in the fatty tissue and blood of organisms so that even a low level of exposure over time can result in a substantial level of PCBs in the body.

One other quality - this one with no useful function - makes PCBs particularly dangerous. When exposed to heat, a common occurrence because of their uses, PCBs create as byproducts polychlorinated dioxins and dibenzofurans, two of the most toxic substances known. In human beings, exposure to PCBs and these byproducts can cause a skin reaction known as chloracne, bleeding and neurological disorders, liver damage, spontaneous abortions, malformed babies, cancer, and death.

Because PCBs were used on a massive scale before being outlawed by Congress, they present a challenge to an attorney whose client has been exposed to them. They have been used in many ways. For instance, from 1960 to 1979, many submersible well-pump manufacturers used capacitors containing almost 6 ounces of pure PCBs. In the last several years, some of these pumps in residential wells have failed, leaking toxic PCBs in the drinking water of unsuspecting families.

In New Mexico, a wooden containment system that was used to store leaking transformers became soaked with PCBs. The system was later demolished, and the wood was chopped up and sold to the public for firewood. At least one family used the wood for heating and cooking and was exposed to high levels of PCBs and dibenzofurans.

Neighborhood junkyards filled with refrigerators, air conditioners, and other products containing rusted PCB-filled capacitors and transformers have become unregulated toxic waste sites, leaking toxins into the groundwater of neighbors and creating deadly playgrounds for children.

On a larger scale, workers in railroad yards and power plants have suffered massive exposure over varying periods of time. They have also taken PCBs on their work clothes and shoes home to their families.

These scenarios may seem to present easy cases for lawyers for the injured parties, but they do not. Every PCB case is expensive to litigate because of the medical and environmental tests that must be performed and because the PCB industry - principally Monsanto, General Electric, and Westinghouse - uses vast resources to fight the cases before they go to trial. Moreover, PCB cases present difficult factual and legal issues. The following is a brief survey of some of the issues and some tips for resolving them.

PCB History

Before trial lawyers take on a PCB case, they should be aware that the defendant will find credentialed experts to tell the jury that scientific inquiry is inconclusive as to whether PCBs are harmful. To persuade the jurors that this is false, plaintiffs' lawyers should review the history of PCBs for them.

Monsanto, once the sole manufacturer of PCBs in the United States, produced as many as 73 million pounds of the substance in a given year, selling it to manufacturers of transformers and capacitors, such as General Electric and Westinghouse.

As early as the 1940s, scientists raised concerns about the dangerous properties of PCBs. Not until 1968, however, did public interest groups take notice. In that year, about 1,200 Japanese citizens were poisoned by PCBs mixed with rice oil. This is known as the Yusho ("oil disease") incident.

The victims each consumed between 1/2 and 2 grams of PCBs and later suffered a variety of ailments now considered classic symptoms of acute PCB exposure; abnormal skin pigmentation, fatigue, headaches, disorientation, numbness of extremities, joint pain, and gastrointestinal disturbances. Nine of 10 babies delivered by pregnant victims showed some malformation, and many victims who later became pregnant suffered reproductive failure. An abnormal number of victims have since had liver problems and cancer.

The Yusho incident led to scientific studies of PCB exposure on monkeys, mice, and rats. The results of those studies showed that PCBs caused cancer in animals.

By 1972, both Japan and Sweden had banned the production and use of PCBs. Also in that year, Congress enacted the Water Pollution Prevention and Control Act. It required the Environmental Protection Agency to publish a list of toxic pollutants, defined as substances that "after discharge and upon exposure ... will ... cause death, disease, behavior abnormalities, cancer, genetic mutations, physiological malformations ... or physical deformations." In July 1973, the EPA issued a list of nine toxic pollutants, including PCBs.

In 1975, the New York Department of Environmental Protection charged General Electric with polluting the Hudson River by discharging 84,000 pounds of PCBs from its facilities at Hudson Falls and Fort Edward, New York. After a protracted hearing, the department ruled against GE, concluding that PCBs "are toxic substances, capable in sufficient quantities of causing skin lesions, destroying cells in vital body organs, adversely affecting reproduction and inducing cancer and death."

Also in 1975, the EPA proposed effluent standards prohibiting any discharge of PCBs. The PCB industry challenged the order. In a detailed decision, the U.S. Court of Appeals for the D.C. Circuit upheld the EPA's conclusions concerning the toxicity of PCBs and upheld the order.

Finally, in 1978, Congress, despite persistent lobbying by the chemical industry, passed the Toxic Substances Control Act. The act progressively banned the further production and use of PCBs. PCBs became - and still remain - the only substance expressly outlawed by an act of Congress.

In a PCB case, trial lawyers should try to read into the record these adjudicative and legislative pronouncements, which can be offered as admissible evidence under the public-records exception to the hearsay rules (Federal Rule of Evidence 803(8)). If this is unacceptable to the court, experts may read part of the findings into the record if they can testify that experts in the field customarily rely on such findings in rendering opinions (Rule 803(18)).

The documents of Monsanto, General Electric, and Westinghouse reveal their knowledge of the dangers of PCBs and directly contradict the position that defendants are likely to assert at trial. In discovery, trial lawyers should request all documents that reflect concern about the harmful effects of PCBs. These documents are likely to help counter the argument that PCBs are not toxic.

For example, a Monsanto document dated may 1971 lists as the effects of "overexposure" to PCBs "nausea, vomiting, loss of weight, edema and abdominal pain." The same document warns workers to "avoid skin and eye contact. Avoid inhalation of vapors ... Remove contaminated clothing. Wash contacted area with large amounts of water and soap. Refer to physician."

Similarly, a Monsanto memorandum dated March 17, 1969, states -

Monsanto advises the capacitor and transformer manufacturers to avoid breathing vapors that would be emitted from the fluid if it were heated to elevated temperatures. Monsanto also advises the user of the fluids to avoid continuous contact with the skin. If clothing becomes saturated, the workman is advised to launder it before wearing it again. If there has been spillage on the skin, it should be removed by washing with soap and water.

The files of G.E. contain similar warnings about human exposure to PCBs. One memorandum states, "Always wear rubber or vinyl gloves. Wear a face shield or safety glasses as appropriate when handling hazardous material or drilling ... Wear an approved respirator as specified by the Medical Director. Do not touch or contaminate anything to be eaten."

In 1967, Monsanto offered written responses to questions that Westinghouse raised about the dangers of PCBs. In that document, Monsanto disclosed that "[PCBs] can have permanent effects on the human body." It also stated that repeated or prolonged exposure to atmospheric concentrations exceeding the accepted threshold levels or repeated and prolonged skin contact could result in "injury to the liver and chloracne ... potential real effect to humans including death."

In 1970, Dr. R. Emment Kelly, a Monsanto physician and toxicologist, wrote his colleagues about the use of PCBs in paint products, asking, "When are we going to tell our customers not to use any [PCBs] in any paint formulation that contacts food, feed, or water for animals or humans. I think it is very important that this be done."

In 1972, Monsanto began to require customers to sign a release for any claims of "adverse effect on humans, marine and wildlife, food, animal feed or the environment by reason of such PCBs."

These statements should be offered as admissions of Monsanto, G.E., and Westinghouse and as support for the opinions of an expert testifying on behalf of the PCB victim. Moreover, a jury should be asked to infer that the warnings and admissions reflect these companies' awareness of dangers.

Animal Studies

Because of the paucity of human epidemiological studies on PCBs, the expert will have to base his or her opinion on animal studies. The defendant is likely to argue that an opinion based on these studies is inadmissible under Rule 703 of the Federal Rules of Evidence, an argument accepted by a minority of courts.

In the majority of cases dealing with this issue, however, animal studies have been approved as a basis for scientific opinion. Trial lawyers should be prepared to argue that toxicology experts have customarily relied on animal studies to assess the effects of substances on human beings. Indeed, Dr. Raymond Harbison, an expert Monsanto and G.E. have often used in PCB cases, conceded this point in a 1980 case involving another toxic substance. Dr. Harbison said, "Animal tests have become our principal source of information about which chemicals pose a cancer risk ... Animals are good predictors of human cancer risk, although arguments can be made that they are not in fact as sensitive to carcinogens as humans."

Still, courts have not resolved this controversy and the issue will be the subject of hard-fought motions in PCB litigation until human epidemiological studies become available.

Organic Chemistry

Practitioners representing parties injured by PCBs should be prepared for a highly technical causation problem. If the victim has PCBs in his or her fatty tissue, the defendant may argue that the PCBs in its product are not the same toxin identified in that person. The defendant will have ample data to show that, because of mass environmental contamination from PCBs before government action in the 1970s, the victim may have been exposed to PCBs through, among other things, fish, milk, and water he or she consumed. To counter this argument, the trial lawyer will need to learn the basics of PCB chemistry.

The composition of PCBs is based on the biphenyl, a substance made by heating benzene. A biphenyl consists of two molecules, each having six carbon atoms attached in a chain. Two carbons, one from each molecule, are bonded together. The remaining five carbon atoms from each molecule are attached to five hydrogen atoms.

To chlorinate a biphenyl, the manufacturer replaces its hydrogen atoms with chlorine. When more than one chlorine atom is added, a polychlorinated biphenyl is formed.

One salient point about PCB molecules is that they may have anywhere from 2 to 10 chlorine atoms. Although all PCBs are toxic, many scientists believe that PCBs grow more dangerous as the number of chlorine atoms increases. Manufacturers, however, cannot create PCB molecules with a specific number of chlorine atoms. Instead, when chlorine gas and biphenyls are mixed, the number of chlorine atoms in the resulting PCB molecules will vary.

Before 1971, Monsanto sold PCBs with a variety of chlorine percentages and sold them under the trade name "Aroclor," followed by a numeral such as 1242, 1254, and 1260. The numerals represented the number of carbon atoms and the average percentage of chlorine atoms in the PCB: 12 for the number of carbon atoms, and 42, 54, and 60 for the average percentage of chlorine in that particular mixture.

In 1971, Monsanto introduced a new mixture called Aroclor 1016. The company claimed it had little or no toxic effect on people.

Lawyers who represent a victim who was exposed to Aroclor 1016, a likely possibility if the product used was manufactured in the 1970s, will face added problems. Some experts believe that less chlorinated PCB molecules do not reside in fatty tissue and thus are difficult to detect after a victim was exposed to the chemical.

This does not mean Aroclor 1016 is not toxic. A victim may still suffer acute symptoms of PCB exposure and long-term liver problems. It does mean, however, that a laboratory might not find Aroclor 1016 in the victim's body but may find higher chlorinated PCB molecules that the defendant can be expected to argue did not come from its product.

To counter this causation problem, the trial lawyer and the expert must be aware of several facts. First, Aroclor 1016 is a deceptive numerical designation for that compound. The chemical still has 12 carbons, not 10, and contains over 41 percent chlorine, not 16.

Confronted with these facts, Monsanto's manager of product acceptability was forced to admit that the designation has no scientific basis and that the product should be called "1242 plus." Second, like all the Aroclors, Aroclor 1016 is a mixture of PCB molecules, some of which contain six, seven, and eight chlorine atoms. Finally, the defendant may claim that its product contained only Aroclor 1016; however, a laboratory analysis of the PCBs in that product is likely to show the presence of other Aroclors.

More importantly, the trial lawyer must not forget about the propensity of PCBs over time to create as a byproduct dibenzofurans and dioxins. It is expensive to test for these substances - in some laboratories, 10 times the cost of PCB analysis - but a finding of these deadly toxins in both the victim and the product will greatly help in providing the causal link that the victim needs to prevail in a lawsuit.

All PCB cases are fraught with difficult factual and legal issues that will challenge both the ingenuity and the technical expertise of victims' attorneys. Successful cases have thus far been few. Monsanto and its customers, however, must face one fact: as cases accumulate, victims exposed to these deadly toxins will fight to be awarded the compensation they deserve.