Part Four: Mass Tort
|John P. Coale, lawyer, behind his desk at his 22nd Street office. Dudley Brooks/The Washington Post via Getty Images|
John Coale was in the back of a taxicab, riding down Washington, D.C.’s Massachusetts Avenue. The radio was on, the news announcer relating details of a catastrophic gas leak in India at a facility owned by Union Carbide, total casualties as yet unknown.
Coale didn’t need to know the final number. What was running through his head like an old stock ticker tape was this thought: “That’s a huge American legal case and I want to be a part of it.” This was before Big Tobacco, a colossus of a suit. Coale was a key member of the so-called Castano litigation, a class-action that went after the tobacco companies for fraud, deceit and negligent misrepresentation in not informing smokers of the addictive properties of cigarettes. That action, which Coale would deem “the mother of all lawsuits,” launched a decade after Bhopal.
In 1984, Coale was still considered young in the legal game at the age of 37. And maybe his relative youth played to his advantage, for what he assessed as the top priority was speed — to be the first American legal team on the ground in Bhopal, and specifically to beat Melvin Belli, the cinematic courtroom lawyer renowned for his unbridled speech, for the quantum of his court awards and for a roster of headline-grabbing clients that included Jack Ruby and Sirhan Sirhan.
So Coale swiftly cobbled together what he calls a “ragtag team,” though at his side was noted lawyer Arthur Lowy (ex CIA, ex state department intelligence) — hardly B league talent. Joining them were Ted Dickinson, the investigator with Coale’s legal practice, and Coale’s tailor, Sastri, who spoke Hindi.
Was there a mad scramble to amass documents and research in advance of leaving? “Oh no,” Coale says, seeming surprised by the suggestion that there might have been some degree of organization. “We just got on the plane. About all we knew was where (Bhopal) was and how to get there.”
The day was just dawning on massive civil actions on behalf of a host of plaintiffs joined in a single case against a corporation. Coale cites the MGM fire in 1980 as a watermark. Cases against commercial jetliners were just getting underway, to be followed by Big Tobacco and asbestos, to cite two of the most headline-grabbing
Determining responsibility for the Bhopal tragedy presented a distinct challenge. “Our first thought was that we had to establish that a lot of the decisions that in the end caused the disaster in India, a lot of the decisions were made in Connecticut, which would give jurisdiction in the United States,” Coale recalls.
Landing in Bhopal, the legal team was swarmed by media waiting for Melvin Belli. But Belli was still en route and had made a pit-stop in New Delhi. From the capital, Belli’s press performance was captured by the Times of London’s Trevor Fishlock, noting Belli’s alligator skin boots, his black suit with the red silk lining. “We’ll knock the stuffing out of them,” Belli said of Union Carbide, predicting that the case would be an easy one. “We’re going for $15 billion.”
Marquee U.S. attorney Melvin Belli had a clear message for Union Carbide: “We’ll knock the stuffing out of them.” Peter Kemp/AP
Union Carbide had announced one of its first goodwill gestures, to set up an orphanage in Bhopal. “The people in India are nobodies,” Belli told Fishlock. “Some poor little bastard living in a railroad shack goes home to find his wife and child dead. Now Union Carbide have the effrontery to offer a f—ing orphanage and a million dollars. It’s a monumental goof.”
Fishlock watched with some amazement as Belli handed a poor woman a 20 rupee note — a considerable sum in the day, worth about $2 — told her it was a Christmas present, and suggested she could buy cigars with it.
“He was an outrageous character,” Fishlock says today from his home in Cardiff. “But nevertheless people did take notice of him. I think the Indian authorities thought that he was the way forward because nobody really knew what to do. How would you sue a major international company?”
The issue of jurisdiction presented obvious challenges. “Tort law was hardly known and the Indian legal system was creaky at the best of times,” Fishlock notes. “India still has a reputation for cases that stretch out through the decades.”
At the Bhopal airport, Coale found himself unexpectedly ahead of the game, beating Belli and facing a throng of media. “I didn’t want to say that I was arriving to see what happened. I told them that I had been called there, which was a lie. That I had been called there and people wanted me to represent them. I was just making that up on the tarmac.”
Within the day, a relation of the mayor’s was printing thousands of personal injury retainers at Coale’s request. By the following day, thousands of Bhopalis were lined up around his hotel, waiting to sign on.
Coale remembers the arrival of Union Carbide chief executive officer Warren Anderson. Anderson’s stay in the city lasted fewer than 24 hours. Arrested upon arrival and charged with culpable homicide and negligence, the heavily bespectacled, reportedly mild-mannered executive was only very briefly at the Union Carbide secluded guest house in the Shyamla Hills before being released on bail. He was quickly spirited to New Delhi, and then to Connecticut.
Six days after the disaster, firmly planted on home turf, Anderson expressed confidence that the victims could be “fairly and equitably compensated.” His message was aimed at shareholders. Dealing with the Bhopal situation would not have a “material adverse effect” on Union Carbide’s bottom line.
On Dec. 14, Anderson appeared before a Congressional subcommittee on health and the environment, which set up a field hearing adjacent to the Union Carbide MIC plant at Institute, W.Va. Institute residents, naturally enough, sought reassurance that the horrors of Bhopal could not be replicated in their own backyard, not in “Chemical Valley.” On the Bhopal tragedy, Anderson said this: “We felt that plant was as safe as this one.” Safety procedures at Institute were constantly under review, the committee was notified with confidence.
Five weeks later, Representative Henry Waxman, the Democratic chairman of the subcommittee, released a bombshell. In a confidential Union Carbide report written just weeks before the Bhopal leak, company inspectors warned of safety issues with the storage of MIC at Institute. “There is concern that a runaway reaction could occur in one of the MIC unit storage tanks and that response to such a situation would not be timely or effective enough to prevent catastrophic failure of the tank,” the report stated. Procedural changes were made at the Institute facility to ensure that water could not leak into the MIC tank. The committee was informed that the report — and the changes it prompted — were irrelevant to the Bhopal situation due to differences in design. The findings had not been shared with their Indian counterparts.
It would be some time yet before John Coale would feel the full thrust of defeat. First, he was bumped to supporting-role status after a power grab among lawyers that would be worthy of its own autopsy if the story had turned out differently. A little more than a year after the tragedy, U.S. District Court Judge John F. Keenan was assigned to conduct hearings on where the case should be tried. On May 12, 1986, Keenan ruled that India was the proper venue. To decide otherwise, he wrote, “would be yet another example of imperialism, another situation in which an established sovereign inflicted its rules, its standards and values on a developing nation.”
In September, the Indian government filed a $3.3-billion suit against Union Carbide. Fourteen months later, the government charged Anderson and a handful of executives with homicide, issuing a warrant for Anderson’s arrest in November 1988. In the first week of February 1989, in the court of the chief judicial magistrate for Bhopal, Anderson, by this point retired from Union Carbide, was deemed an “absconding offender.”
The CEO had long since retired, having told a reporter as he exited Union Carbide in December, 1986, that he was looking forward to some hobby time. “I’d like to try carving ducks, and I’m a bread baker,” he offered.
Anderson would never see the inside of an Indian courtroom, nor would the company ever have to subject its sabotage theory to legal examination. On Feb. 14, 1989, the Indian Supreme Court suddenly affirmed a $470-million (U.S.) out-of-court settlement between the company and the Indian government. Writing in the Washington Post, a young Malcolm Gladwell noted that the company’s insurance would cover about $200 million of the settlement, and that a further $200 million would be drawn from an existing corporate reserve fund. “As a result,” Gladwell wrote, “yesterday’s settlement means the Danbury, Connecticut-based Carbide, which had revenue of just over $8 billion last year, will spend at most $70 million more to close the books on one of the biggest disasters in industrial history.”
Gladwell quoted a dryly observant John Coale: “I would say (the Carbide lawyers) represented their clients very well.”
Union Carbide stock rose $2 a share on the news, lending credence to Anderson’s expressed view that dealing with the Bhopal problem wouldn’t have much effect on the bottom line. The stake in Union Carbide India Ltd. was sold in 1994. Four years later, the acquiring company terminated its lease on the property, which today is owned by the state government of Madhya Pradesh.
Any lasting hopes that Union Carbide could still be held to account for the accident in an Indian court appeared to collapse in 2001 when the once aggressively internationalist multinational became a wholly owned subsidiary of its one-time competitor Dow Chemical.
From the beginning, John Coale thought Bhopal had the potential to be a landmark case in holding to account the American company operating abroad. “I thought this would be a … counter to the multinationals who seemed to do anything they wanted at the time,” he says. These days it is the tobacco wars that people ask him about — a huge victory. Bhopal is remembered only occasionally. On that catastrophe, Coale offers a one-line summation: “The people got screwed.”
Life had already changed for Union Carbide in Chemical Valley. The company sold its Institute, W.Va., plant to Rhone Poulenc in 1986. In 2002, the company that became Bayer CropScience acquired the facility and its processes for making Temik and Sevin.
At approximately 10:30 in the evening of August 28, 2008, plant employees Barry Withrow and Bill Oxley were sent to investigate abnormally high pressure readings at a residue treater that stored waste Methomyl, a highly toxic and reactive insecticide sold under the trade name Larvin. Within minutes, a runaway chemical reaction caused by excess Methomyl blew the waste tank and exploded into a fireball, killing Withrow. Oxley would die in hospital 41 days later.
An investigation by the U.S. Chemical Safety Board cited multiple safety violations and equipment deficiencies, including malfunctioning or missing equipment, misaligned valves and bypassed critical safety devices.
Not 30 metres from the twisted rubble of the waste vessel stood a 17,000-kilogram capacity MIC storage tank. On the night of the accident, the tank contained approximately 6,350 kilograms of MIC, a key component in synthesizing Methomyl. A Congressional committee was struck to investigate. “The explosion at Bayer’s plant was particularly ominous and unnerving,” said the committee in summary, noting that the treater, weighing 2,300 kilograms, shot 15 metres through the plant, cutting a path of destruction. “Had this projectile struck the MIC tank, the consequences could have eclipsed the 1984 disaster in India.”
MIC, the committee said, “is considered ‘immediately dangerous to life and health’ at the extremely low concentration of three parts per million in air. At ordinary temperatures, MIC is a liquid but it evaporates very rapidly to form a heavier-than-air vapour cloud.”
Transcripts of telephone calls at the time of the explosion underscore the confusion of first responders, and offer an eerie echo to the Bhopal disaster. The fire department had no idea what it was dealing with, as evidenced by a call to the plant: “We have a cloud of some type that is dark, it’s moving toward (the nearby town of) Nitro, can you please try to get some information so you can tell us what it is?”
A cloud of smoke swiftly travelled westward. There were no further casualties, but residents had long been on high alert to potential dangers. In his testimony before the committee, John Bresland, chairman of the U.S. Chemical Safety Board, noted that the other chemical companies had ceased storing large volumes of MIC, quoting a noted safety authority: “What you don’t have, can’t leak.”
There was no solace in any of this for the residents of Bhopal.
The risks associated with stockpiling MIC at Institute dovetailed with the U.S. Environmental Protection Agency’s risk assessment of aldicarb — the Temik that Nadir Kahn bottled at the Bhopal plant. In August 2010, citing aldicarb’s potential to cause such neurotoxic effects as blurred vision, abdominal pain, vomiting and diarrhea, the EPA banned the pesticide. Bayer agreed to cease production of the Temik brand as of December 2014. In January 2011, just prior to the release of the Chemical Safety Board’s report on the runaway Methomyl reaction, the company further announced that it would phase out production of MIC across an 18-month period.
In January 2012, the company announced it was selling its “crop protection assets” to Tessenderlo Kerley, Inc., including the Sevin trademark. Tessenderlo will only say that carbaryl, the active ingredient in Sevin, is produced in China. Any ingredient in that process including, potentially, MIC, is deemed proprietary and confidential information.
Raees Quereshi steps from his shanty into the bright light of day. He has a bar of soap in his grasp, the soap serving two purposes. The first is a quick morning scrub. After that, he will briskly rake his toothbrush across the hard cake and set to work cleaning his teeth as the neighbourhood goes about its usual morning clang and clatter.
Quereshi’s brother Sayeed has had a bad night, his phlegm-filled cough repeatedly lurching him awake, his lungs barking an angry wet rattle. Sayeed’s first task of the day is to hot-wire the neighbour’s water pump so that his wife, Apsari, can fill the urns that will be carried to the shanty for the household cooking and washing. The municipality turns the water on daily, which makes for an industrious 15 minutes in the neighbourhood. There is no point in even trying to ask a question in the middle of all this action. The women are the water bearers and they are made impatient by distraction. We have already learned this lesson from Parvati, who told us to return after the water had been drawn.
From the roadway, Quereshi’s home appears much as it did the night of Dec. 2, 1984. Dozens of spent bicycle tires are still dispersed across the rooftop in an attempt to settle the plastic sheeting meant to keep the rain away. Pieces of tin and the occasional slathering of cement have patched some of the holes between the wooden slats.
Inside, most of the walls have now been parged and painted.
Many of the homes in J.P. Nagar have been built up, sometimes by a storey or even two. But Quereshi’s shows no such signs of improved fortune. Sayeed is too ill to work, so his brother’s income must provide for their wives and the six children they have between them. There is a single steel-frame bed, which Sayeed rests upon. Everyone else sleeps on a hardpack mud floor under a bright light bulb that is never turned off and a television that blares late into the night. The family’s possessions are scant: some metal containers. A plastic rug and bed rolls.
Their brother Waheed was made a widower by the disaster, and he moved to Jabalpur soon after. Six, or possibly seven years after the tragedy, Apsari gave birth to a baby boy. They named him Nadeem. He quickly lost his eyesight, and six months later was dead. Three years after that Apsari miscarried. Their mute daughter Sakina was born in 1989, followed some years later by their son Salman, who, by all appearances, is strapping and healthy.
Many of the victims have stayed in place. Jebur Nisha and Vishnu Bai and Parvati and Azaad.
Nadir Khan moved away. After the disaster, he started selling onions and potatoes from a hand cart. Today he makes 200 rupees a month working as a sentry at Hamidia Hospital. His health is frail — he looks as though he’s barely able to stand for the work.
As he has done in a previous meeting, Khan retrieves the small pile of official papers that he keeps in a manila folder. His termination papers were signed by Mr. Krishnamoorthy, industrial relations manager at Union Carbide India Ltd. “During his association with us we have found Mr. Nadir Khan’s character and conduct good,” the letter states. “We wish Mr. Nadir Khan all the best in his future endeavours.”
Why would he continue to work at a place known to be unsafe?
Khan is missing many teeth, and his jaw does a sideways shimmy as he explains that the pay was good. What a foolish question.
We want to return to the scene of the tragedy for a third time. To do that, we must wait in the ramshackle office of the gas relief department, and explain ourselves, and be patient, and await the attention of the handsome bureaucrat who is the intermediary for the approval we seek. It is unclear what the process is, precisely. If there are efficiencies here, they are not apparent.
A group of men sit in near slumber around a table. A fan tries to whir. Our functionary unties the string holding a stack of official papers together. He is surrounded by piles of such paper, the processing of which is a mystery. Time passes, an anxiety in itself. Clearly it is a labour to be given the green light.
We return to the abandoned and ghostly place, walking the crisply dry grounds, toward the rusted carcass of the plant. The spires of steel have been all but stripped to their skeleton form, save for the insulation that weeps off some of the piping. The control room is hollow-eyed and tragically comical with its “Safety is Everybody’s Business” sign. Broken glass crunches underfoot as we enter the laboratory. Stout brown bottles, enshrouded in cobwebs, bear aged labels for diphenylamine and dichloromethane and other polysyllabic mysteries.
|The control room of the Union Carbide plant|
Two of the MIC tanks remain in their concrete bunker. The infamous tank, 610, was yanked out of place and now lies 40 paces to the east. The grounds are eerily quiet, with only the occasional sound from the clamour of the neighbouring bustees penetrating the silence. In one of its reports, the medical research council noted that the adjacent hutment situated in the opposite direction of the wind on that fateful night largely escaped exposure to the toxic gas. In the distance, decorative red and orange flags have been brought to attention by an advancing wind.
Beyond the factory grounds, a raggedy black polyethylene scrim pokes from under a berm that rises above a solar evaporation pond. Union Carbide’s plant at Institute was built by a river, and thus had a natural outlet for its discharged waste. As no such river exists next to the Khali Parade grounds, three ponds were designed, ponds that proved inadequate to the task of accommodating the factory’s waste.
A Greenpeace report from 1999 was the first to document site and groundwater contamination based on extensive testing. From mercury around the Sevin site, which was still visible on our visit, to volatile organochlorine compounds in the groundwater, Greenpeace found “substantial and, in some locations, severe contamination of land and drinking water supplies with heavy metals and persistent organic contaminants.”
The process of migrating the residents in surrounding areas from local wells to clean and properly piped water has taken generations. The contamination remains, as do 350 tonnes of toxic waste on the plant grounds, locked in a storage building that we could not get access to. Years-long promises to ship out the toxic waste have come to naught.
Washington, D.C., lawyer Richard Lewis has for years been trying to drag the environment case before a New York jury. On behalf of a group of Bhopali residents, Lewis and co-counsel sued Union Carbide and Warren Anderson, and more recently Union Carbide and the state of Madhya Pradesh, alleging that the American company was negligent in its oversight of plant operations, and is thereby responsible for chemicals leaking into the groundwater, polluting the soil and drinking water of nearby residents.
In his most recent ruling, on July 30, 2014, Judge Keenan once again found that responsibility does not rest with Union Carbide. UCIL, he ruled, was responsible for the design of the waste treatment facility. An exasperated Lewis points the finger at Union Carbide U.S.A. “The design comes from Institute, and the expertise comes from Institute, and the risk of water contamination and the knowledge of how to treat it comes directly from Institute,” Lewis said in an interview.
Keenan would not allow for the deposition of John Couvaras, a one-time Union Carbide project manager. Through Couvaras, the plaintiffs allege that the American operation had final say over plant design, including the waste treatment system. Keenan found the opposite: that Couvaras became an employee of the Indian subsidiary when he took on the responsibilities of project manager. Lewis intends to commence an appeal of Judge Keenan’s latest ruling Nov. 22.
There is a bigger picture that needs to be underscored, Lewis continues. “The enormous implication is that there has to be a way to require multinational corporations to use their knowledge and expertise to control environmental pollution when they’re doing business in the developing world or in countries in Africa or South America or Asia that have less stringent regimes. I think that’s the core issue of this entire controversy.”
The entire environmental controversy, that is. But even that doesn’t get at the true heart of the matter.
In December 1984, after he returned from Bhopal to Union Carbide’s Connecticut headquarters, Warren Anderson predicted that the balance of his career would be spent “having to sort out this incident.”
Anderson was long retired when, in October 1991, India’s Supreme Court, while upholding the $470-million settlement of two years earlier, overturned an agreement that granted the corporation’s executives immunity from criminal prosecution.
In December 1991, Bhopal’s chief magistrate ordered Anderson to face trial on charges of “culpable homicide, not amounting to murder.” Four months later, the Indian government issued an extradition warrant for the “absconder” Anderson. Union Carbide called the extradition attempt “disgraceful … Anderson’s only connection was after the tragedy when he attempted to bring aid and relief to the victims of Bhopal.”
In June 2010, more than 25 years after the accident, Keshub Mahindra, 85, and seven former executives of Union Carbide India Ltd. were convicted of a “negligent act” and sentenced to two years. Those convictions are under appeal. A petition by India’s Central Bureau of Investigation to have the sentences increased was rejected.
For years, a candlelight vigil has been held in Bhopal on the anniversary of the disaster. For years, the absconder Anderson was burned in effigy. It is Dow Chemical that is now lit aflame, personified by a briefcase-carrying devil that is pulled on a dolly through the streets before it is torched and beaten to cinders by boys with sticks. Dow accepts no responsibility. “Dow never owned or operated the Bhopal facility,” says a corporate communications representative via email. “Any efforts to directly involve Dow in legal proceedings in India concerning the 1984 Bhopal tragedy are inappropriate, misguided and without merit.”
|A briefcase-carrying devil, representing Dow Chemical, is lit on fire in the streets of Bhopal.|
The district court in Bhopal has said repeatedly that is has issued a summons via the Central Bureau of Investigation to cause Dow to appear. Dow says no such summons has been received.
First-hand accounts of that cold, black night 30 years ago are disappearing.
Nadir Khan has had a paralysis attack and can no longer stand.
On Sept. 29, Warren Anderson died in a Florida nursing home. He was 92.