Last year, we told you about a lawsuit brought by three California cities against Monsanto Company, alleging that Monsanto is liable for PCB (polychlorinated biphenyl) contamination in San Francisco Bay. The cities—San Jose, Berkeley, and Oakland—sued Monsanto for allegedly creating a public nuisance not by discharging PCBs, but just by manufacturing them.

In September 2016, the court dismissed the suit, holding that the cities had not alleged a property interest in the contaminated water in question, a requirement of California public nuisance law. However, the court allowed the cities to amend their complaint, and the cities took advantage of that opportunity.

The cities filed an amended complaint, setting forth their property interest in the water in greater detail. Once again, Monsanto moved to dismiss the complaint. This time, however, Monsanto was not successful. Not only did the court hold that the cities sufficiently alleged a property interest in the water, but it held that the cities had adequately pled that Monsanto caused the nuisance.

In their amended complaint, the cities allege that “Monsanto knew PCBs were dangerous, concealed that knowledge, promoted the use of PCBs in a range of applications, and gave disposal instructions that were likely to cause contamination.” The cities allege that Monsanto provided an incinerator for the disposal of liquid PCB waste, but it just instructed customers to dispose of solid PCB waste in “a well operated, properly operated landfill . . . .”

Monsanto countered these allegations noting that there were no regulations at the time to prevent disposal of PCB waste in landfills, and that its recommendations regarding disposal were not mandatory. Despite that, the court found that the cities allegations were “sufficient to show a causal connection between Monsanto’s actions and the alleged public nuisance.”

Monsanto further argued that any alleged contamination was caused by third parties who were actually responsible for the disposal of the PCBs. The court disagreed. According to the court, under California law, third party actions do not preclude Monsanto’s liability if the acts are “reasonably foreseeable, and should have been anticipated.” And, based on the cities’ allegations, widespread PCB contamination was reasonably foreseeable. In addition, the court distinguished other cases in which manufacturers were not held liable by noting that the cities allege that Monsanto is directly liable for the nuisance because they gave improper disposal instructions.

Ultimately, the court denied Monsanto’s motion to dismiss, but granted Monsanto the opportunity to file another motion to dismiss or stay the case based solely on whether the cities had exhausted their administrative remedies.

Unfortunately for manufacturers, this case is not an anomaly. There is a growing trend in the pursuit of public nuisance claims against manufacturers, in part as a way to side-step traditional products liability laws. And with this victory, plaintiffs may gain some traction—at least for now—to pursue similar claims against other manufacturers.

The cases, pending in the U.S. District Court for the Northern District of California, are City of San Jose v Monsanto Co. et al., No. 5:15-cv-03178; City of Oakland v Monsanto Co. et al., No. 5:15-cv-05152; and City of Berkeley v. Monsanto Co. et al., No. 5:16-cv-00071.

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