Timing Is Everything – Risks Associated With Exposure To PCBs Was Not Foreseeable In 1969


On December 8, the U.S. Court of Appeals for the First Circuit, in the case of Town of Westport, et al., v. Monsanto Company, et al., affirmed the District Court’s ruling granting the defendants’ Motion for Summary Judgment in a products liability case involving the sale of products containing polychlorinated biphenyls (PCBs). The Court of Appeals, affirming the District Court’s ruling, held that

Monsanto did not breach the implied warranty of merchantability because it was not reasonably foreseeable in 1969 that there was a risk PCBs would volatilize from caulk at levels requiring remediation — that is, levels dangerous to human health.

The Town of Westport, MA filed this lawsuit to recover the costs of remediating the Westport Middle School, which was constructed in 1969 by a contractor using caulk containing PCBs. It is estimated that the total costs of remediation may be in the neighborhood of $30 million. The lawsuit was based on several claims including a breach of implied warranty for merchantability for defective design and failure to warn, and negligence and nuisance.

Monsanto Company removed this product from the market in 1970 based on environmental studies regarding the threat posed by PCBs in commerce. In 1970, the Environmental Protection Agency (EPA) was created, and in 1976, the Toxic Substance Control Act –which is concerned with PCBs–was enacted. These facts persuaded the District Court and the Court of Appeals that the plaintiffs did not establish that Monsanto could have reasonably foreseen the risks that PCBs contained in caulking products would volatilize to the extent that there were threats to human health and the environment.

Even today, the Court of Appeals noted, “there are still no studies … that show PCBs volatilize from caulk at levels harmful to public health.”