Fighting a chemical giant: cases mounting against PCB manufacturer Monsanto
BURLINGTON, Vt. (WCAX) - Could a series of lawsuits against the PCB manufacturer Monsanto in Washington state help plaintiffs in Vermont win similar cases? PCB experts say they think the answer is yes.
A Washington-based law firm has started trial six of 21 alleging hundreds of students and parents at a local school there suffered brain injuries from exposure to the toxic chemical, and they say Monsanto is responsible.
In a new federal lawsuit filed earlier this month, two former Burlington High School educators are suing Monsanto, arguing PCB exposure in the buildings caused reproductive problems and cognitive issues.
Richard Friedman is the lead attorney on most of the 21 lawsuits. He says the Washington lawsuits and the Vermont lawsuit are likely the first few ripples of an oncoming tsunami of cases against Monsanto, and the danger that’s been lurking beneath the depths for decades is quickly rising to the surface.
“The hard part about these cases is that people don’t want to believe it’s true. No one wants to believe that we’re sending a third of America’s school children to schools where they’re getting poisoned every day, but that is the fact. That is the truth,” Friedman said.
It’s a truth on which Massachusetts Senator Ed Markey sounded the alarm six years ago in 2016 when he issued a report called The ABCs of PCBs: A Toxic Threat to America’s Schools. But the disturbing details that report revealed have largely flown under the radar.
“There are not a lot of medical people with knowledge about PCB poisoning. Monsanto has done a beautiful job of keeping all of that suppressed,” Friedman said. “It’s a sad fact of American life that sometimes only big jury verdicts get anybody’s attention.”
SKY VALLEY PERSONAL INJURY LAWSUITS
Friedman and his Washington-based firm Friedman-Rubin Law are tasked with proving more than 200 students, parents, and teachers from a Monroe public school, Sky Valley Education Center, were poisoned by PCBs, convincing juries of the correlation between illnesses and the toxic chemical.
“How do you say that’s related to PCBs versus somebody’s just got the flu or somebody has a skin condition?” Friedman said. “Is that because their immune system is unable to fight that skin rash or is it because they would have had this anyways? So, that’s where the fight is with Monsanto -- trying to attribute all of these symptoms of PCB poisoning to other things.”
Of the five cases that have finished so far, Friedman and his plaintiffs have won four of those legal fights. Juries have awarded Friedman’s clients a combined more than $500 million in compensatory and punitive damages, some of the largest jury awards for individuals who’ve endured PCB-related injuries, ever.
Monsanto’s parent company, Bayer, has vowed to appeal each decision. In response to the most recent verdict on October 13 that awarded 13 plaintiffs a total of $275 million, Bayer issued a statement to WCAX saying in part:
“We respectfully disagree with the divided jury verdict reached in this 13-plaintiff case and plan to pursue post-trial motions and appeals based on multiple errors and the lack of proof at trial... The air and other tests in evidence reflected either no or extremely low levels of PCBs in this school, and there was no physical evidence introduced at trial showing exposure to PCBs, such as blood testing results.”
PROOF OF PCB POISONING
Friedman says his firm is wielding weapons in the courtroom battlefield Bayer isn’t -- the world’s leading PCB researchers.
“It takes a long time for even the scientific community, say anything of the public and the governmental communities, to understand scientific research,” said Dr. David Carpenter, who has testified in the Washington lawsuits as a PCB and medical expert witness.
Now director of the University at Albany’s Institute for Health and the Environment, he’s been examining the detrimental effects of PCBs on human health at the college since the 1980s. Though Carpenter has demonstrated the link between PCB exposure and disease through human studies, he says his extensive research on rodents provides the most compelling evidence to corroborate his conclusions.
“There’s always some chance that the human data was due to something you couldn’t control, but you can control animal studies. And if you have animal studies that lead to a result that then is totally consistent with what you see in the human populations, that gets you much closer to absolute proof,” he said.
While research on PCB poisoning is still limited in scope, Carpenter says it isn’t new. In fact, he published several studies in scientific journals decades ago, first focusing on how the class of 209 chemicals interfere with IQ and alter behavior early in his career, then expanding to other harms to the human body.
“Most of my research in the last 10 years at least -- maybe 15 years -- has been looking at diseases like diabetes, high blood pressure, heart disease, thyroid disease, changes in reproductive hormones,” Carpenter said. “And this is sort of mind-boggling to most people because the idea that one group of chemicals can cause so many different diseases is difficult for people to grasp.”
The Sky Valley Plaintiffs are primarily complaining of difficulties with memory and emotion, which is why Friedman is formulating his arguments on the connection to neurological injuries. Carpenter says that’s because symptoms of brain damage present in the earliest phase of PCB poisoning, so the plaintiffs haven’t yet developed those debilitating diseases, but he says they could in the coming years.
“One thing that has really helped here has been the legal cases because the magnitude of the awards these juries are giving the students and the teachers has gotten people to pay attention to some of the research I did back in 2005,” he said. “Rick Friedman has just been masterful in how he has assembled a team of people who are experts in their own area but complement each other. So we make a good tag team.”
EXAMINING PCBS IN SCHOOLS
If Carpenter is the illustrator drawing the line between two points, Keri Hornbuckle is the academic who’s been warning about the writing on the wall. Hornbuckle is the director of the University of Iowa Superfund Research Program, a group of engineers, toxicologists, and public policy experts examining airborne PCBs. Together, Carpenter and Hornbuckle put the PCB picture into perspective.
“PCBs affect neurodevelopment, and so we need the concentrations of these to be low in people who are in the learning part of their life,” Hornbuckle said.
When sampling and testing the indoor air of ordinary school buildings and comparing those measurements to outdoor PCB levels near polluted waterways Hornbuckle and the Superfund Research Program recently made a groundbreaking discovery. Concentrations in those schools were significantly higher. Hornbuckle says the United States has a practically ubiquitous, yet still quiet, crisis. “I always thought that living near a superfund site would be the worst case for exposure, but now I think being in some schools may be the worst case for exposure,” she said. “In the last five years, the combination of scientific understanding about the risk has dramatically improved. So it’s become more clear to us and more urgent to us that we talk about strategies for dealing with this problem.”
Before the Sky Valley lawsuits, Hornbuckle had never testified to a jury on PCB poisoning in America’s schools, but Friedman convinced her to step on the Washington state stage so he could shine the spotlight on her research for the world to see.
“My concern is not whether or not PCBs are there but how can we reduce them to lower levels. How can we find the circumstances that are of greatest concern and strategically start to remediate those situations?” Hornbuckle said.
Here in Vermont, the Department of Environmental Conservation has hired Hornbuckle as a consultant to determine just that, as part of an unprecedented, first-in-the-nation program. Over the summer, her team utilize specialized practices to identify which building materials emit the most PCBs into the air -- from carpet and tile to glass block windows and spray insulation -- giving administrators the tools to predict major sources, bypassing the expensive testing process and removing the potential root of the problem from the get-go.
In 2021, the Vermont Legislature passed Act 74, requiring all schools built or renovated before 1980 to test their indoor air for PCBs by 2025.
About 350 schools statewide, almost all in Vermont, fall into that category. Since spring, DEC has sampled a couple dozen, according to the state’s testing schedule. Officials announced Monday they have received results for six schools, and two have results in at least one room exceeding the state’s school action levels or immediate action levels, which require prompt attention.
CONTAMINATION AT BURLINGTON HIGH SCHOOL UNCOVERED
The saga began in September 2020 when the Burlington School District found PCB contamination in the nearly 1,000-student high school, ultimately deciding to permanently shutter and then demolish the campus and sending kids to a converted former Macy’s department store downtown in the meantime.
The district is asking voters to approve a $165 million bond this November to pay for the new high school.
Now, the district is also suing Monsanto and seeking state and federal grants to help cover the cost.
In a statement to Channel 3 News, Bayer writes, in part:
“Monsanto has not produced PCBs since 1977, did not manufacture any of the alleged PCB-containing fluorescent light ballasts or caulk products at either SVEC or the Burlington High School, and is not responsible for them or warnings related to them. These products were manufactured by third party customers of Monsanto at the time and the company is currently pursuing indemnity claims against them. Moreover, if PCBs continue to be present in any schools built before 1980, then the school districts likely have failed for more than three decades to follow repeated EPA guidance and best management practices by delaying routine maintenance and the safe removal and disposal of products that are decades beyond their intended or useful life.
In the Burlington High School matter, the school system did not identify PCB issues until their planned renovation process was well underway in 2019 – decades after it should have been aware of – and addressed – potential PCB concerns for a school that was built in 1964, based on more than 30 notices or guidance documents from EPA that date back to 1985.”
Hornbuckle is confident scenarios like Burlington’s will become increasingly common, and it isn’t economically realistic for every district in the country to completely replace the estimated one-third of America’s PCB-contaminated schools. Low-income districts that simply can’t afford to borrow millions of dollars will be the hardest hit. That’s why Hornbuckle says her priority is finding a targeted solution, and the data collected here in the Green Mountain State is building the foundation.
“Through a coordinated effort like Vermont’s taking, I feel more optimistic that the best outcomes can be achieved. Vermont’s actions at this time, their decision to measure and to use those measurements to make further decisions about remediation of schools, to think about in an organized way and with lots of information about how to do so, will have tremendous effect on the nation,” Hornbuckle said.
There is no pot of money to pay for mitigation measures on the federal level. As of Monday, Vermont state leaders gave the green light to set aside $2.5 million to help schools where PCBs have been identified. This past session, lawmakers also earmarked $32 million for investigating, testing, and removing PCBs in schools.
Early in the process of surveying Vermont schools, DEC estimated districts should be prepared to pay between $10,000 and $18 million for PCB cleanup.
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