Bhopal Litigation in the U.S.

Initial Cases
Within days of the disaster, American personal injury lawyers who had gone to Bhopal brought civil litigation in the U.S. against Union Carbide Corporation (UCC). The cases were first brought on behalf of individual claimants by the U.S. lawyers and later by the Government of India (GOI) as statutory representative of all claimants under the Bhopal Gas Leak Disaster Act passed by the Indian Parliament in early 1985.  The cases were consolidated in New York before U.S. District Judge John F. Keenan.

UCC moved to dismiss the litigation on the grounds of forum non conveniens; this is, it asked the court to dismiss the case because another court, or forum, in this case, India, was much better suited to hear the case.  Judge Keenan granted the motion in May 1986 on the condition that UCC accept the civil jurisdiction of the Indian courts to hear the cases, which UCC accepted. The dismissal was affirmed on appeal and the U.S. Supreme Court declined to review it.

Class Action Lawsuits
Between 1999 and 2007, three class action lawsuits were filed in the U.S. District Court for the Southern District of New York against UCC and former UCC Chairman Warren M. Anderson:

  • The Bano case was filed in November 1999 -- eight years after the settlement between UCC and the GOI was upheld by the Supreme Court of India.  The Bano plaintiffs attempted to avoid the preclusive effect of the settlement with the GOI by alleging violations of international law and that UCC and Mr. Anderson had failed to appear in criminal proceedings in India, which they alleged was required by UCC’s consent to jurisdiction as a condition to dismissal of the U.S. litigation and the Supreme Court of India’s judgment upholding the settlement. The case was assigned to Judge John F. Keenan.

    In January 2000 -- after the publication of a 1999 Greenpeace report concerning pollution at the former UCIL plant site -- the Bano plaintiffs filed an amended complaint, adding environmental pollution claims unrelated to 1984 gas leak. The amended complaint alleged property damage in 16 colonies near the plant site as a result of groundwater pollution caused by the operation of the UCIL plant and also added Haseena Bi as a plaintiff, claiming personal injury and property damage from the alleged contamination.

    For the next six years, the case and various appeals by the Bano plaintiffs were argued before both the District Court and U.S. Court of Appeals for the Second Circuit, respectively. Finally, in August 2006, the Court of Appeals affirmed the last of Judge Keenan’s rulings, ending the litigation.

    Key rulings by Judge Keenan in the Bano case that were upheld by the Court of Appeals included:

    • Plaintiffs lacked standing to sue with respect to the Bhopal gas disaster since the GOI was the exclusive representative of the victims under the Bhopal Act.
    • Plaintiffs’ claims were barred by the settlement with the GOI.
    • UCC did not violate his order to consent to the civil jurisdiction of the Indian courts, which was imposed as a condition to the dismissal of earlier litigation in the United States based upon the 1984 gas release on the grounds of forum non conveniens, by not appearing in the criminal case in India.
    • UCC did not agree to criminal jurisdiction in India when the civil settlement was upheld by the Supreme Court of India and the criminal case was allowed to proceed.
    • Dismissal of environmental pollution claims.
    • Dismissal of plaintiff Bi's personal injury and property damages claims.
    • Dismissal of claims seeking the remediation of the UCIL plant site.
    • Dismissal of claims for property damage, injunctive relief and class-action certification.

For the complete opinion of the Second Circuit Court of Appeals, please click here.

For Union Carbide's statement on this ruling, please click here.

Remediation and Plant Site Pollution Litigation

  • The Janki Bai Sahu case -- filed in November 2004 -- alleged personal injuries caused by pollution from the former UCIL plant site.  The case, known as Sahu I, was brought by 13 individuals on behalf of themselves, family members and others similarly situated, and also was assigned to Judge Keenan.

    For the next eight-plus years, the case and various appeals by the Sahu plaintiffs were argued before both the Court and U.S. District Court of Appeals for the Second District, respectively.  Finally, in the June, 2013, the Court of Appeals affirmed the last of Judge Keenan’s rulings, ending the Sahu I litigation.

    Key rulings by Judge Keenan during the Sahu trial that were upheld by the Appeals Court included:

    • Rejecting plaintiffs’ direct liability claims that UCC “participated in the creation of the pollution by approving the back-integration of the Bhopal Plant, designing the Bhopal Plant’s waste disposal systems, transferring technology to UCIL, by its knowledge of water pollution risks, and by its ‘intimate participation’ in environmental remediation efforts.”
    • Rejecting plaintiffs' argument that the alleged environmental contamination would not have occurred if UCC had not approved back-integration of the plant, based on the undisputed fact that UCIL -- acting under pressure from the GOI -- first proposed back-integration and that UCC’s approval did not, “as a matter of law, rise to the level of participation in the creation of pollution.” 
    • Rejecting plaintiffs’ contention that UCC “designed the faulty waste disposal systems installed at the Bhopal plant,” holding that “the documents [plaintiffs] cited simply do not establish that UCC was responsible for such design.” Judge Keenan found that “UCIL may have consulted UCC about its plans early on, but UCIL was the ultimate decision maker, so primary responsibility for the design and construction of the waste disposal system at the Bhopal Plant rested with UCIL.” A memorandum outlining the respective roles of UCC and UCIL “states in no uncertain terms that ‘UCIL will have the primary responsibilities for designing and providing the… facilities for… disposal of wastes.’”
    • Rejecting plaintiffs’ argument that UCC was liable because it provided manufacturing technology to UCIL. Judge Keenan ruled that the generation of waste does not give rise to liability; rather, disposal of the waste is the issue.
    • Finding that plaintiffs offered no evidence than any technology provided by UCC “itself was polluting” or “caused pollution, in and of itself.”  Judge Keenan concluded “that the evidence demonstrates that the allegedly unproven and improper technology used at the Bhopal Plant was selected and/or developed by UCIL, not UCC.”
    • Ruling that “[t]he fact that UCC recognized potential waste disposal issues does not give rise to the extensive liability Plaintiffs suggest.” Even if UCC had a duty to act, as plaintiffs’ contended, Judge Keenan found that “UCC did speak up, numerous times,” making UCIL fully aware of the waste disposal issues.
    • Agreeing with UCC “that UCIL/EIIL is and always has been an adequately capitalized corporation, negating any inference that UCIL was a dummy or shell corporation used to carry out business.” Indeed, he held that “it is uncontested that EIIL is an independent going concern of adequate capitalization and assets,” negating any inference of abuse of the corporate form.
    • Finding that the documents plaintiffs relied on to support their contention that UCC controlled UCIL actually showed that UCIL had “discretion which is completely inconsistent with plaintiffs’ theory of absolute control.” Judge Keenan concluded that “there is a marked lack of evidence of domination.”
    • Asserting there was no individual liability for Mr. Anderson.
    • Rejecting plaintiffs’ claims for medical monitoring and remediation on the grounds that they were impracticable – the same grounds on which they were rejected in the Bano case.

    In its last ruling in 2013, the Court of Appeals held:

    • Concerning “Direct Liability” claims: "...no reasonable juror could find that UCC participated in the creation of the contaminated drinking water.…Neither UCC’s approval of the plan to “back-integrate” the plant, nor its transfer of technology for pesticide manufacture, nor its designs for a waste disposal system, nor its limited involvement in remediation amount to participation in the failure of the evaporation ponds to contain the hazardous waste."
    • “Sahu’s negligence claim fails for the same reason as does her nuisance theory – namely that any actions taken by UCC did not legally cause the pollution complained of.”
    • Regarding plaintiffs’ “Indirect Liability” theories, “We find no error in the District Court’s legal conclusions and, based upon an independent review of the record, conclude that no reasonable juror could find for Sahu on any of these theories.”

The Court of Appeals concluded: “Sahu and many others 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.”

To view the entire ruling by the Court of Appeals, please click here.

  • Jagarnath Sahu et al v. UCC and Warren Anderson (aka Sahu II case) -- After the Court of Appeals affirmed the dismissal of the Bano action, a second Sahu class action alleging property damage claims was filed in March 2007. The second Sahu action had been stayed pending the final appeal in the first Sahu action. Following its resolution, in July 2014 Judge John Keenan dismissed the Sahu II case and stated that the company could not be sued for ongoing contamination from the [Bhopal] chemical plant. 

    In May 2016, the U.S Second Circuit Court of Appeals in New York affirmed the lower court ruling, which said that UCC was not liable for any pollution arising out of the disposition of wastes at the former Union Carbide India Limited plant site in Bhopal. This was the last case in the U.S. courts seeking damages related to the Bhopal plant, all of which have been dismissed.

    In June 2016, plaintiffs filed petitions for a rehearing of the appeal and certification of certain questions of state law to the New York Court of Appeals. Union Carbide stated that the petitions are without merit and should be denied.

    In July 2016, the U.S Court of Appeals for the Second Circuit in New York rejected the plaintiffs' petition for certification of certain questions of state law and then, on Aug. 15, 2016, the same court rejected the petition of plaintiffs for a rehearing, letting stand the lower court decision that said UCC was not liable for any plant site pollution effects arising out of the Bhopal tragedy. This was the last case in the U.S. courts seeking damages related to the Bhopal plant, all of which have been dismissed.

Frequently Asked Questions about the Bhopal Litigation in the U.S.

1. What is the status of U.S. litigation against UCC regarding paying additional compensation to victims?
A. In 1989, UCC and UCIL entered into a $470 million legal settlement with the Indian Government, settling all claims arising from the incident. The Indian Supreme Court affirmed the settlement and described it as "just, equitable and reasonable." UCC and UCIL promptly paid the money to the GOI. A lawsuit filed in U.S. District Court in 1999 asserting claims for personal injuries and property damage arising out the Bhopal gas disaster was dismissed, and the dismissal was affirmed on appeal.

2. What is the status of U.S. litigation regarding remediation (clean up) of the site?
A. Cases filed in New York Federal court in November 2004, and thereafter, have focused on site remediation and compensation for residents. In June 2012, a Federal court unambiguously concluded in the Sahu I case that neither UCC nor its former Chairman Warren Anderson are liable for any environmental remediation or pollution-related personal injury claims made by residents near the Bhopal plant site.

However, plaintiffs filed an appeal. In June 2013, the Federal Court of Appeals for the Second Circuit upheld the 2012 court decision, stating: "...many others 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".

A separate case -- Jagarnath Sahu et al v UCC and Warren Anderson (Sahu II) -- filed in 2007 in New York District Court sought damages to clean up six individual properties allegedly polluted by contaminants from the Bhopal plant, as well as the remediation of property in 16 colonies adjoining the plant. This suit, which had been stayed pending resolution of appeals in Janki Bai Sahu case (Sahu I), was the last remaining Bhopal-related case before U.S. Courts. In July 2014, Judge Keenan ruled that UCC was not liable for any on-ongoing pollution from the Bhopal chemical plant.

In May 2016, the U.S Second Circuit Court of Appeals in New York affirmed the lower court ruling in Sahu II, which said that UCC was not liable for any pollution arising out of the disposition of wastes at the former Union Carbide India Limited plant site in Bhopal. This was the last case in the U.S. courts seeking damages related to the Bhopal plant, all of which have been dismissed.

In July 2016, the U.S Court of Appeals for the Second Circuit in New York rejected the plaintiffs' petition for certification of certain questions of state law and then, on Aug. 15, 2016, the same court rejected the petition of plaintiffs for a rehearing, letting stand the lower court decision that said UCC was not liable for any plant site pollution effects arising out of the Bhopal tragedy. This was the last case in the U.S. courts seeking damages related to the Bhopal plant, all of which have been dismissed.

3. Aren't UCC and Mr. Anderson in violation of Judge Keenan's 1986 order that required them to appear in Indian Courts?
A. No. The American litigation was civil litigation.  Judge Keenan's order and UCC's consent were with respect to civil jurisdiction in India -- not criminal jurisdiction.  UCC did litigate and settle the civil claims arising from the Bhopal tragedy in the Indian civil courts.  UCC is not subject to criminal jurisdiction in India and has not consented to it. UCC and Mr. Anderson were not required to appear in any criminal matters in India.

As the U.S. Court of Appeals noted in its 2006 decision upholding Judge John Keenan's rulings in the Bano case, UCC did not violate his order to consent to the civil jurisdiction of the Indian courts, which was imposed as a condition to the dismissal of earlier litigation in the United States based upon the 1984 gas release on the grounds of forum non conveniens, by not appearing in the criminal case in India. For the complete opinion of the Court of Appeals, please click here.