Bhopal gas tragedy victims appeal to higher U.S. court

Updated - November 28, 2021 09:04 pm IST

Published - November 25, 2014 11:16 pm IST - Washington

One of the victims of the Bhopal gas tragedy during a dharna at Jantar Mantar in New Delhi. File photo

One of the victims of the Bhopal gas tragedy during a dharna at Jantar Mantar in New Delhi. File photo

After a New York judge declined, in July 2014, to allow the case brought by victims of the 1984 Bhopal gas tragedy, to proceed and ruled in favour of the defendant, the Union Carbide Corporation (UCC), the plaintiffs have appealed, this past week, to a federal court to reverse the decision the U.S. firm could not be sued for ongoing contamination from the chemical plant.

In the Sahu II case plaintiffs EarthRights International said that they had presented the U.S. District Court of the Southern District of New York with evidence that a UCC employee, Lucas John Couvaras, managed the construction of the plant, and in doing so had provided substantial new evidence that demonstrates UCC’s involvement, despite which “the court chose to improperly assess the weight and credibility of this evidence, assessments that are supposed to be left to the jury.”

On July 31, District Judge John Keenan, who had ruled in favour of UCC in prior cases too, said, “The manufacturing processes and waste disposal systems to be implemented at the Bhopal plant were all initially proposed by UCIL (Union Carbide India Limited)… [and thus] defendant UCC's motion for summary judgment is granted [and] plaintiffs' motions relating to the deposition of Couvaras are denied.”

On Friday, the plaintiffs, led by attorney Rick Herz, filed their appeal in the Second Circuit Court of Appeals, which they noted had previously reversed several prior dismissals of cases against UCC and would, they believed, do so yet again, “Because judges are not supposed to ignore or weigh evidence without letting a jury hear the case.”

The Bhopal gas tragedy, considered India’s worst industrial disaster, occurred on December 2, 1984, at the UCIL pesticide plant and in its wake many thousands of people were injured from exposure to methyl isocyanate gas and other chemicals and several thousands were killed.

Speaking to The Hindu , Mr. Herz said that new evidence indicating the involvement of UCC was that Mr. Couvaras, who oversaw the design work in India for had signed a deposition saying he was a UCC employee, and further, two experts who examined the UCC and UCIL plant designs suggested that they were similar enough to effectively consider the final design to be that of UCC’s.

There was also another company employee, T.R. Chauhan, who had confirmed that Mr. Couvaras was a UCC employee and indeed the “conduit” for getting design or other approvals from U.S.-based engineers of the firm.

Given this evidence presented a trial judge is not supposed to say that one side was right and the other was wrong, Mr. Herz explained, rather the judge should only rule on whether there was enough of a dispute for the case to go to jury and preclude summary judgement.

In an email to The Hindu, UCC spokesman Tomm Sprick said, the U.S. Second Circuit Court of Appeals had recently dismissed “a nearly identical case” against UCC, Sahu I, and that documents created at the time events took place established conclusively that “no reasonable juror could find that UCC participated in the creation of the contaminated drinking water.”

Mr. Sprick added that as Judge Keenan had ruled earlier, “The record simply does not support Plaintiffs’ contention that UCC determined the method of waste disposal at the Bhopal Plant. Instead, the record indicates that (1) UCC offered a preliminary evaluation and limited feedback to UCIL, which then (2) worked with its local contractors to implement a disposal system that disregarded many of UCC’s concerns, leading to (3) the pollution that allegedly caused Plaintiffs’ property damage.”

He also underscored the Second Circuit of the U.S. Court of Appeals’ conclusion on June 27, 2013, that “People living near the Bhopal plant may well have suffered terrible and lasting injuries from a wholly preventable disaster for which someone is responsible. After nine years of contentious litigation and discovery, however, all that the evidence in this case demonstrates is that UCC is not that entity.”

On June 28, 2012, Judge Keenan sided with UCC’s erstwhile CEO Warren Anderson in denying that they faced any individual liability because he did not personally approve the location of the Bhopal plant.

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