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Plaintiffs, by their attorneys, bring this action both individually and on behalf of all other persons similarly situated, as survivors and next-of-kin of victims of the Bhopal Gas Disaster of December 2-3, 1984, against Union Carbide Corporation (hereafter "Union Carbide"), as well as its former Chief Executive Officer, Warren Anderson, for grave violations of international law and fundamental human rights, pursuant to the Alien Tort Claims Act (28 U.S.C. § 1350), for their unlawful, reckless and depraved indifference to human life in the design, operation and maintenance of the Union Carbide of India Ltd. ("UCIL") facility at Bhopal which resulted in the devastating leak of massive amounts of methyl isocyanate ("MIC") into the city killing thousands and injuring many thousands of its residents. Union Carbide’s operation of the UCIL facility evinced a complete disregard of any emergency-preparedness or minimal safety precautions, resulting in widespread death, severe permanent physical and psychological trauma, as well as grave risk to life, health and security of tens of thousands of the residents of Bhopal. Plaintiffs also assert pendent state law claims based on the widespread and severe contamination and environmental pollution of soil and drinking water caused by Union Carbide’s operation of the UCIL facility separate and apart from Defendants’ liability arising from the Bhopal Disaster which resulted in toxic exposure and injury to the same community of victims of the . Further, Defendants are also liable for civil contempt, abuse of judicial mandate and evasion of lawful process, as well as actual and constructive fraud, as a consequence of their total failure to comply with the lawful orders of the courts of both the United States and India.

Bano

1. Sajida Bano ("Bano"), a resident of Bhopal, is a survivor of the Bhopal Gas Disaster of December 2-3, 1984. At the time of the Disaster, she resided in Bag Umrao Dulha, a residential colony about four miles southeast of the Union Carbide plant in Bhopal. Her husband, Ashraf Mohammad Khan, was an employee of UCIL and often complained to her about the dangerous working conditions at the facility. On December 25, 1981, Ashraf Khan was killed by a leak of phosgene at the plant that also severely injured two other employees. The leak took place after Ashraf Khan was asked to open a particular valve at the plant by his manager who had assured him that there was no danger of a phosgene leak. He was kept at the plant dispensary after the leak and subsequently taken to Hamidia hospital where he died.
2. On the night of December 3, 1984, Bano had just arrived at the Bhopal train station at 1:30 a.m. from the city of Kanpur where she had gone to visit her mother, when she began to experience a choking sensation and her eyes began burning and tearing profusely. Around her, many people at the train station began falling unconscious or began asphyxiating. With her two sons, she rushed to the station’s waiting room which was full of people who were unconscious or choking to death. In the ensuing panic amongst the crowd, she was separated from her two children.
3. After she collapsed from exposure to MIC gas, she was carried to a nearby hospital from where she was brought to her brother’s home. Her brother then went to the train station to find her two children and bring them back. After finding the two boys amongst a large number of people at the train station who were either dead or unconscious, he managed to find a lorry driver who, despite the fact that his horse was dying from gas exposure, agreed to take the Bano children to his home.
4. Both of Bano’s sons were severely ill and in acute respiratory distress after being exposed to the MIC gas. Her eldest son, Arshad Mohammad Khan, died from slow asphyxiation on the way to the hospital at 9:00 a.m. on December 3, 1984. To this day, Bano’s only surviving child, Shoeb Mohammad Khan, now 19 years old, continues to suffer severe illness as a result of MIC exposure and has had to discontinue his studies due to his physical impairments. Bano herself continues to suffer from chronic breathlessness and other severe exposure-related health problems.

Kumar

5. Sunil Kumar ("Kumar"), a resident of Bhopal, was orphaned at the age of 13 on the night of December 2, 1984 when the Bhopal Gas Disaster occurred. His family had moved to Jaiprakash Nagar, a residential colony close to the UCIL facility, less than a year before the Disaster.
6. Both his mother, Kusum Devi, and father, Kashiprasad, died on the night of the Disaster itself. Sunil also lost his sister, Pushpa Devi (22 years old); his brother, Anil Kumar (18); his younger brother, Santosh Kumar (10); and two sisters named Kiran (6) and Sanju (3).
7. On the night of the Disaster, Kumar escaped on a truck to a town named Budhni near Bhopal where he was hospitalized for a day and then sent to Hoshangabad hospital where he was admitted for 15 days. His uncle and brother-in-law were finally able to trace his whereabouts through radio announcements and brought him back to Bhopal.
8. He came to know of the death of his mother and father and of his two sisters from a neighbor and was present at the cremation of their bodies. Unlike many other survivors of the disaster who never really learned what happened to their family members due to mass burials and cremations following the incident, Kumar was able to learn of the death of his other family members from notices put up by the government with photos of unidentified bodies.
9. Since that time, Kumar has suffered from numerous respiratory ailments, especially severe episodes of breathlessness, which doctors have advised him are the result of MIC exposure. He also suffers from post-traumatic stress disorder, which has made it impossible for him to work or hold down a job, and he complains of a constant fear of the manifestation of other symptoms of the MIC exposure.

Norton

10. Dr. Stanley Prem Norton ("Dr. Norton"), a resident of Bhopal, is a former Professor of Zoology at the city’s Motilal Vigyan College. On the night of the Disaster, he was residing in a house adjacent to Bhopal’s mosque, the Moti Masjid, in Khirniwala Maidan, Ward No. 7, which is also in close proximity to the Union Carbide facility. Dr. Norton presently resides at B-1/4, Sheetal Nagar, Berasia Road, Bhopal.
11. Despite the fact that other residents of Bhopal were fleeing the city in panic on the night of December 2, 1984, Dr. Norton chose to stay and help the medical authorities cope with the huge influx of victims of MIC gas exposure in the city’s hospitals.
12. Dr. Norton has been classified by the medical examiners as "permanently injured" as a result of his exposure to the MIC gas. As a consequence of his exposure to MIC on that night, he has developed ischemic heart disease with right bundle block of the heart as well as severe pulmonary oedema, a respiratory ailment very common amongst the gas exposed population of Bhopal that drastically impairs breathing due to inflammation of the lungs. He also suffers from several neural muscular disorders, cataract and chronic asthmatic bronchitis due to the gas exposure.
13. Dr. Norton also lost his mother who, according to her doctors, died as a result of complications arising from illnesses caused by MIC gas exposure seven years after the night of the Bhopal Gas Disaster.

Asad Khan

14. Asad Dad Khan ("Asad Khan"), a resident of Bhopal, was 7 years old on the night of December 2-3, 1984. Since he was a minor at the time of the Bhopal Gas Disaster, Asad Khan has never been included in the official registry of Bhopal gas victims until recently and has been unable to claim any compensation for his injuries.
15. He has been diagnosed by physicians at the Gandhi Medical Center and at the Hamidia Hospital in Bhopal as suffering from chronic heart ailments as a result of MIC gas exposure. In particular, doctors have informed him that there is a weakening of the valves of his heart, which could result in death if he overexerts himself physically. Asad Khan is presently 22 years old.

Maithil

16. Shiv Narayan Maithil ("Maithil"), a resident of Bhopal, was living in MIG-15, New Subhash Nagar, Ward No. 39, on the night of December 2, 1984. He woke up that night complaining of excessive tearing and burning in the eyes. Like many victims of the Bhopal Gas Disaster, he initially thought that these symptoms were caused by somebody burning chili peppers in the vicinity of his neighborhood.
17. However, within minutes, Maithil began to suffer from a choking cough and severe vomiting from the MIC gas exposure and had to be taken to a nearby hospital. After that night, he began to suffer regularly from indigestion, complaining of an intense burning sensation in his stomach and had great difficulty in eating food.
18. Maithil had been to a number of doctors and hospitals in Bhopal in order to seek treatment for these persistent symptoms which became a continuous health problem after 1986. In 1988, he was diagnosed as having cancer of the esophagus by a medical examiner. Two independent physicians at one of the most reputed hospitals in India, the Tata Memorial hospital, have confirmed that Maithil’s disease of cancer in the food pipe is almost certainly the result of exposure to MIC gas.
19. Maithil has been forced to spend all of his life savings on the medical treatment of this cancer and the respiratory ailment of his right lung, pleural influsion, which were both the result of gas exposure. In 1989, he was operated on for cancer of the esophagus and a large portion of his food pipe was removed, making it difficult for him to eat solid foods. Maithil complains that, despite this operation, he continues to have great difficulty eating solid foods and maintaining the diet required to sustain his health. His doctors have advised that he will suffer from these disabilities for the rest of his life.

Yadav

20. On the night of the Disaster, Devendra Kumar Yadav ("Yadav") was residing with his parents as well as his wife and daughter at House No. 71, Ghora Nakkas, Mangalwara Road, Bhopal. Yadav’s wife was four months pregnant at the time of the Disaster and was very severely affected by exposure to the MIC gas. She was treated at the Hamidia hospital immediately following exposure.
21. Due to persistent health problems resulting from the severity of her toxic gas exposure, Yadav’s wife had to be repeatedly hospitalized throughout her pregnancy. From December 5, 1984 to December 7, 1984, she was admitted for treatment at the M.Y. Hospital in the nearby city of Indore. Subsequently, she required further treatment at other hospitals in Bhopal as well as Ujjain.
22. Yadav’s wife went into labor before the expected date of delivery and was admitted to the Sultania Zenana Hospital on April 9, 1985 where she gave birth to a male child on April 12, 1985. The child was premature, of low birth weight and extremely weak as well as in poor health. Doctors at the Sultania Zenana hospital sent the new-born child to Hamidia hospital for emergency treatment and care. The child died at the hospital on April 15, 1985.
23. Two independent medical specialists and an expert committee have concluded, based on the medical records of the deceased child, that the death of the new-born was caused by the exposure of Yadav’s wife to MIC gas during pregnancy.

BGPMUS

24. The Bhopal Gas Peedit Mahila Udyog Sangathan ("BGPMUS"), a voluntary, non-governmental organization in Bhopal, is the grassroots self-help organization created by the victims of the Bhopal Gas Disaster. All of the members of the BGPMUS are victims of the Disaster who reside in Bhopal. The organization has been the recognized as the legal representative of the victim community in Bhopal in several writ petitions before the Supreme Court of India and continues to have official status as an intervenor assisting the prosecution in the criminal case against Union Carbide pending in Bhopal District Court. As a representative of the interests of gas affected victims, the organization continues to be a member of the State Advisory Committee on Bhopal Gas Tragedy Relief and Rehabilitation, an agency created by the state government.

GPNPBSMB

25. The Gas Peedit Nirashrit Pension Bhogi Sangharsh Morcha,Bhopal, ("GPNPBSM") is a grassroots self-help organization created by the victims of the Bhopal Gas Disaster. All of the members of the GPNPBSM are victims of the Disaster who reside in Bhopal. For the last thirteen years since its inception, the organization has paid special emphasis on protecting the interests of those destitute survivors of the Bhopal Disaster who are dependent on pensions from the Madhya Pradesh state government for their former employment.

BGPMSKS

26. The Bhopal Gas Peedit Mahila Stationery Karmachari Sangh ("BGPMSKS") is a registered trade union of those women survivors who are employed as workers in the making of paper stationery as part of the Indian government’s rehabilitation program. For the last thirteen years since its inception the organization has paid special emphasis on the issue of the economic rehabilitation of the survivors of the Bhopal Disaster. For the last several years the organization has been recognized as the legal representative of those few survivors who are employed under government rehabilitation programs by the High Court of the State of Madhya Pradesh.

BGPSSS

27. The Bhopal Gas Peedit Sangharsh Sahayog Samiti ("BGPSSS"), a voluntary, non-governmental organization in New Delhi, India, is an advocacy organization created by and on behalf of the victims of the Bhopal Gas Disaster. The majority of the members of BGPSSS are victims of the Disaster who reside in Bhopal and those who are not consist primarily of Indian attorneys and activists campaigning on behalf of those victims. The organization has been the recognized as the legal representative of the victim community in Bhopal in several writ petitions before the Supreme Court of India and continues to have official status as an intervenor assisting the prosecution in the criminal case against Union Carbide pending in Bhopal District Court.

BGIA

28. The Bhopal Group for Information and Action ("BGIA"), a voluntary, non-governmental organization in Bhopal, is a grassroots advocacy and self- help organization created in 1986 on behalf of the victims of the Bhopal Gas Disaster. BGIA attempts to document the ongoing and continuous medical and environmental toll of the Disaster and works to obtain appropriate medical and/or legal relief for its victims. The organization has been the recognized as the legal representative of the victim community in Bhopal in several writ petitions before the Supreme Court of India and continues to have official status as an intervenor assisting the prosecution in the criminal case against Union Carbide pending in Bhopal District Court.

Other Class Members

29. Other Class members, not named as Plaintiffs herein, are all those exposed to MIC on the night of December 2-3, 1984 in the city of Bhopal, India and their children, if any, who were exposed to and/or injured by MIC gas through the exposure of their parents, whether through heredity in the form genetic abnormalities or congenital defects or through transmission from the blood or other bodily fluids.
30. The Class of Plaintiffs includes those named herein and all others similarly situated who themselves or whose family members were the victims and survivors of the Bhopal Gas Disaster in India, as well as their heirs and beneficiaries who were injured as a consequence of the gas leak caused by Union Carbide. Victims and survivors include, but are not limited to (a) those individuals and/or families residing in the wards closest to the campus of the UCIL factory that have been categorized by the official Indian Government registry as "severely affected"; (b)  all other survivors of the Bhopal Gas Disaster in India, who suffered physical injury as a direct consequence of the events of December 2-3, 1984; and (c) all those individuals and/or families residing near the campus of the UCIL facility that continue to be exposed to toxic chemicals and other by-products as a result of the severe environmental contamination of soil and water caused by Union Carbide in Bhopal.

Defendants

31. Union Carbide is a New York corporation with its principal office located at 39 Old Ridgebury Road, Danbury, Connecticut. Union Carbide operated its plant in Bhopal, India, through its affiliate, Union Carbide India Ltd. ("UCIL"); in which Union Carbide owned the majority stake of 50.9% and over which it exercised complete, effective and pervasive control. Union Carbide is an accused on the criminal charges of culpable homicide which remain pending in Bhopal District Court and has been declared a "proclaimed absconder" for its failure to appear for trial on those charges, despite repeated summons and notices to appear served on its corporate officers.
32. Warren Anderson ("Anderson") is the former Chief Executive Officer of Union Carbide who presently resides in Florida. On December 4, 1984, Anderson visited Bhopal, India along with a technical team and was briefly arrested and released on bail. He is also an accused on the criminal charges of culpable homicide which remain pending in Bhopal District Court and has been declared a "proclaimed absconder" for his failure to appear for trial on those charges, despite repeated summons to appear for trial having been served on him. A non-bailable arrest warrant has been issued for Anderson by the Bhopal District Court and filed with Interpol.

JURISDICTION AND VENUE

33. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1350, the Alien Tort Claims Act, in that this proceeding consists of a civil suit brought by aliens for torts committed in violation of the law of nations and treaties of the United States. This Court also has jurisdiction pursuant to 28 U.S.C. § 1331 in that Plaintiffs’ claims pose a substantial federal question and pursuant to 28 U.S.C. § 1332 in that there is complete diversity between the parties and the matter in controversy exceeds $75,000 exclusive of interests and costs. Plaintiffs' causes of action arise under, among others, the following laws, agreements, resolutions and treaties:
1. Customary International Law;
2. Common Law of the United States of America;
3. Laws of the Republic of India;
4. Universal Declaration of Human Rights, U.N. G.A. Res. 217 (III 1948);
5. International Covenant on Civil & Political Rights, 999 U.N.T.S. 171 (December 16, 1966);
6. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 23 I.L.M. 1027 (1984), as modified 24 I.L.M. (1985);
7. International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195 (1966);
8. Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/CONF. 48/14, 11 I.L.M. 1416 (June 16, 1972);
9. Title 28 U.S.C. § 1350.
34. This Court has personal jurisdiction over the parties in that (a) Plaintiffs are all aliens alleging fundamental violations of international law in accordance with the Alien Tort Claims Act, and (b) the Defendants do business within the State of New York and has minimum contacts with the State based on its purposeful availment of the laws of New York and its continuous business activities in the jurisdiction.
35. Venue is proper pursuant to 28 U.S.C. § 1391(a) in that the Defendants do business within the District and/or own property within this District pursuant to 28 U.S.C. § 1391(b). This Court is the only appropriate forum for adjudication of this action because Union Carbide, in violation of the conditions of prior dismissal from the United States forum and the express orders of the Supreme Court of India, refuses to submit to the lawful jurisdiction of the courts of India and is not amenable to jurisdiction in any other forum.
36. This Court has supplemental jurisdiction over Plaintiffs’ non-federal law claims pursuant to 28 U.S.C. § 1367.

CLASS ACTION ALLEGATIONS

37. Plaintiffs bring this action on behalf of themselves and all others similarly situated who themselves or whose family members were the victims and/or survivors of the Bhopal Disaster in India, pursuant to Federal Rules of Civil Procedure § 23 (a), (b)(1)(B) and (b)(3). The Class includes all persons who were exposed to the release on December 2-3, 1984 of MIC and other toxic chemicals from Union Carbide's plant in Bhopal, India. Plaintiffs also bring this action on behalf of all individuals who at any time from the establishment of the UCIL facility in India to the present reside in the adjacent residential communities and neighborhoods whose property has been damaged and who have been exposed to toxic chemicals as a result of the discharge of toxic effluents and other persistent pollutants into the soil and water in and around the Union Carbide plant in Bhopal.
38. There are predominating common questions of law and fact relating to the international law claims of Plaintiffs and the Class and subclasses including, but not limited to, the following:
1. did Union Carbide demonstrate reckless or depraved indifference to human safety and life in the design, operation and maintenance of its MIC facilities in Bhopal as well as its safety mechanisms?
2. did Union Carbide manifest intentional, reckless disregard of the dangers inherent in its policy of operating the Bhopal facility on a subsistence basis with inadequate safeguards?
3. did Union Carbide have knowledge of the serious danger to life and health posed by the facility and its history of prior leaks including knowledge of the ultrahazardous character of MIC?
4. did Union Carbide’s systematic policy of racial discrimination in the design, construction and operation of the Bhopal facility cause the Bhopal Gas Disaster?
5. whether Defendants are in breach of Judge Keenan’s order requiring Union Carbide to submit to the jurisdiction of India and in what respect?
6. whether there has been a toll or waiver of the statute of limitations with respect to Plaintiffs’ causes of action?
39. Common questions of law and fact also predominate over any individual issues with respect to Plaintiffs’ state law claims based on environmental contamination and pollution of the soil and water surrounding the UCIL plant in Bhopal:
1. whether Defendant’s manufacturing, storage, treatment and disposal practices at the UCIL plant were negligent;
2. whether Defendant’s manufacturing, storage, treatment and disposal practices at the UCIL plant constitute intentional malfeasance;
3. the policies, procedures and guidelines used by the Defendant in manufacturing, storing, treating and disposing of chemical products and waste by-products of its pesticide production processes;
4. whether Defendant’s design, operation and maintenance of the UCIL facility was negligent insofar as it directly resulted in the severe contamination of the soil and water in and around the UCIL plant in Bhopal;
5. whether Defendant’s design, operation and maintenance of the UCIL facility constitutes intentional malfeasance insofar as it directly resulted in the severe contamination of the soil and water in and around the UCIL plant in Bhopal;
6. whether the grounds and surrounding environs of Union Carbide’s plant in Bhopal have been contaminated with chemical by-products, wastes, pesticides and other toxins and the extent of such contamination;
7. whether the persistent pollutants which Defendant has discharged into the environment surrounding its Bhopal facility are toxic;
8. whether Defendant’s conduct constitutes a nuisance;
9. whether the Class should receive medical monitoring;
10. whether Union Carbide is liable for compensatory damages and the measure of such damages;
11. whether Union Carbide’s conduct was wanton and outrageous;
12. whether Union Carbide is liable for punitive damages and the amount of such damages; and
13. whether the Class is entitled to equitable relief.
40. While all members of the Class share common questions of law and fact, the proposed Class includes the following subclasses divided on the basis of type of injury:
1. All persons who suffered personal injuries as a result of exposure to the MIC gas, as set forth above;
2. All persons who are entitled to recover damages for losses caused by death of their relatives, including but not limited to, wives, husbands and children, as a result of exposure to MIC as set forth above;
3. All persons who were exposed to MIC as set forth above but whose injuries have not yet manifested themselves;
4. All persons who have sustained injuries such as neurological, psychological or as a result of birth defects in children from exposure to MIC; and
5. All persons not yet born whose injuries will manifest themselves as congenital birth defects resulting from exposure to MIC as set forth above.
6. All persons who continue to be exposed to toxic effluents, chemical by-products and other hazardous agents as a result of ongoing evironmental pollution at Union Carbide’s facility in Bhopal;
7. All persons who have suffered property damage and other losses as a result of the continuing environmental pollution and contamination at Union Carbide’s facility in Bhopal.
41. The Class and subclasses represented by Plaintiffs are so numerous that joinder of all members is impracticable. The precise number of individuals exposed to MIC is not presently known with certainty, but according to the official estimates of the Indian Council of Medical Research, an estimated 521, 262 residents of 36 municipal wards were exposed to the MIC gas. There is also risk of serious injury to others in the future.
42. Adjudications with respect to individual members of the Class would, as a practical matter, be dispositive of the interests of other Class members not parties to the adjudication. The claims are so numerous and significant that it is likely that there would be a limited fund available from Defendants’ assets inadequate to compensate Plaintiffs and the Class for either compensatory or punitive damages. Individual litigation of these claims would be entirely impractical and would impair the ability of Class members to protect their interests.
43. The claims of the named Plaintiffs are typical of those of the Class and subclasses, and the named Plaintiffs will fairly and adequately protect the interests of the Class and its subclasses. Plaintiffs' interests do not conflict with those of the Class and subclasses, and Plaintiffs are represented by counsel experienced in class action litigation. Moreover, since most, if not all, of the victims of the Bhopal Disaster continue to reside in the communities surrounding the UCIL plant, the Class of those who continue to be exposed to the toxic effluents and other environmental contaminants from the Bhopal facility is virtually identical to the Class of individuals who were exposed to the toxic gas leakage on December 2/3, 1984.
44. A class action is superior to other available methods for the fair and efficient adjudication of this controversy.

FACTUAL BACKGROUND

45. Fifteen years ago, on the night of December 2, 1984, a deadly gas leak from Union Carbide’s facility killed at least 7,000 people in Bhopal, India and grievously maimed several hundred thousand. For those who did not survive, death came in the particularly excruciating manner of slow asphyxiation by one’s own bodily fluids. For those who survived, the catastrophe continues. Hundreds of thousands continue to suffer from permanent disability and chronic illnesses as a result of exposure to Union Carbide’s toxic gases. This night of unimaginable terror in Bhopal has been called the "Hiroshima of the Chemical Industry", the worst peacetime industrial disaster in history.

The Bhopal Disaster

46. Around midnight on Sunday, December 3, 1984, a massive leak of highly toxic MIC and other toxic chemical by-products spilled out from storage tank number 610 of the Union Carbide plant in Bhopal, blanketing the city for miles with a deadly white fog. Thousands were killed instantly from exposure to the gas as they slept or as they fled through the narrow alleys of the residential areas surrounding the plant. Hundreds of thousands were maimed and remain injured to this day. Due to the mass burials and cremations following the incident, estimates of the number of dead vary widely, but official estimates prepared by the Indian government suggest a casualty toll of at least 1,700 individuals in the 48 hours following the leak. Unofficial estimates indicate a toll of 6,000 or more fatalities in the days immediately following the Disaster. Studies conducted by the Indian Council on Medical Research point out that the spontaneous abortion rate in Bhopal is 24.2 % or nearly three times the national average: the rate of stillborn infants is 26.1 per 1000 deliveries compared to an all-India rate of 7.9 per 1000; and, even one year after the disaster, infant mortality in the city was around 110 per 1000 births whereas the national average in India is 65.2 per thousand.
47. The Union Carbide facility in Bhopal manufactured pesticides, including an insecticide, SEVIN, which is compounded from MIC. MIC was known by Union Carbide's officials, management and technical experts to be a very dangerous chemical of an extremely volatile and highly toxic nature. When inhaled in the form of a gas, its effects on human beings range from asphyxiation, nausea, the vomiting of blood, and permanent blindness to damage to the tissues of the lungs, kidney, and liver to nervous illnesses and possible genetic defects. As far back as 1963, confidential research was undertaken at the Carnegie Mellon University in Pittsburgh by the Mellon Institute for Union Carbide. That reasearch generated a confidential special report to Union Carbide which concluded that "methyl isocyanate appears to be the most toxic member of the isocyanate family" which "is highly toxic by both preoral and skin penetration routes and presents a definite hazard to life by inhalation." Union Carbide’s own technical manual on MIC, dated July 1976, evidences full knowledge of the dangers of MIC: "Methyl isocyanate (MIC) is reactive, toxic, volatile and flammable. It is usually stored and handled in stainless steel… Any other material may be unsuitable and, possibly, dangerous." The manual specifically indicates that certain metals and metallic alloys "must be excluded from contact with methyl isocyanate. They catalyze a dangerously rapid trimerization… The heat evolved can generate a reaction of explosive violence."
48. On the night of December 2, 1984, UCIL plant employees were ordered by their supervisors to conduct a water-washing exercise prescribed by Carbide’s own operational manuals in order to clear certain lines or pipes which were choked solid with chemical compounds, residue and corrosive rust. The procedure began at 8:30 p.m. on December 2nd and continued until 12:15 a. m., December 3rd. In accordance with standard procedure, the hose was connected to a ‘bleeder connection’ which was directly connected to the Relief Valve Vent Header ("RVVH") and started pumping water at an estimated 3,000 litres an hour into the line. Because the ‘bleeder valves’ which were to discharge the water were choked with solid chemical compounds, the excess water backed up in this bleeder connection and built up sufficient pressure to flow past the RVVH isolation valve. Plant logs indicated that this valve was closed but a 1982 safety audit conducted by Union Carbide expressly warned Union Carbide officials in America that the "MIC shut-off valves routinely leak."
49. Once water entered the RVVH, it would have accumulated until the point that it reached the RVVH line’s maximum height of 20 feet and then begun draining back into the system via gravity flow. This in itself could not have led to the entry of water into tank 610 since the relief valve on the RVVH would have stopped the flow of water and a second rupture disk, which was found to be intact when it was checked on November 30th, would also have blocked any entry route for water into tank 610. The water did, however, have an alternative entry route into the tank due to the installation of a "jumper" or shunt line joining the RVVH and the PVH lines. This design modification was approved by Union Carbide engineers in the United States sometime in May of 1983, a year before the Disaster.
50. The final entry barrier to prevent water from entering into tank 610 consisted of the pressure valve at the entrance to tank 610 which was known to be faulty. The valve was designed primarily to keep the MIC inside the tank under pressure. But, as the company accepts, the valve had been leaking and malfunctioning since October 22, 1984 when attempts were made to pressurize the tank. The day before the accident, operators had tried to increase the pressure in the tank, but the tank's contents again leaked through the pressure valve. In fact, Union Carbide's investigating team conceded in its March 1985 report that the toxic gases released from tank 610 escaped through precisely this pressure valve and that this "escape route (through the safety valve) could also have provided a route of entry for water."
51. Union Carbide has publicly conceded that the leak and the subsequent explosion were produced by the introduction of water into MIC storage tank number 610. About forty tons of MIC stored in tank number 610 then catalyzed violently with the water in an exothermic reaction which cauterized the storage tank, rupturing the concrete casing of the tank above ground and releasing approximately twenty tons of the deadly gas into the atmosphere. Newly discovered evidence obtained by the Plaintiffs which was filed by the prosecution in the criminal case against the Indian managers of UCIL establishes that one of the senior officials at UCIL, J. Mukund, admitted to the Collector and District Magistrate of Bhopal on the night of the disaster itself that the Bhopal facility’s safety features were incapable of handling the magnitude of the release which had occurred.
52. The exothermic ‘runaway reaction’ which took place in tank number 610 was extraordinarily rapid. The process must have begun sometime around 10:00 p.m. when the pressure in tank number 610 was noted to be 2 pounds per square inch ("psi"). Around 11:00 p.m., field operators detected that MIC was leaking into the atmosphere and the control room operator noticed a pressure rise in tank 610 from 2 psi to 10 psi. Around 12:15 a.m., field operators reported that a mixture of MIC and water continued to leak from somewhere along the RVVH line to their supervisors. After determining what they thought to be the location of the leak, supervisors terminated the water-washing exercise and ordered a water spray onto the leaking point.
53. Between 12:15 a.m. and 12:30 a.m., the pressure reading on the tank reached 30 psi and, within moments, pressure exceeded the scale at 55 psi. At or about 12:30 a.m., the concrete casing of tank 610 split due to expansion of the tank walls caused by internal pressure and both the rupture disk and the safety valve unseated. The bulk of the contents of tank 610 were then released through the RVVH and VGS lines causing mayhem in the surrounding residential colonies. Around 12:50 a.m., the factory alarm sounded, alerting workers to a hazardous leak. No warning was given to the thousands living near the plant because, sometime in 1982, Union Carbide had decided to disconnect its public siren from the factory alarm.

Union Carbide’s "Sabotage" Theory

54. Union Carbide’s own theory of what it calls the "Bhopal sabotage Disaster" was based on its insistence, from the outset, that the cause of the catastrophe "could only have been" sabotage. On March 20, 1985, Union Carbide held a press conference at its headquarters to release its own report on the Bhopal Disaster which stated that water could have been introduced "inadvertently or deliberately" into tank 610 at the Bhopal facility. Defendant Warren Anderson then told reporters that a disgruntled employee might have deliberately connected a water line to the tank. Subsequently, Union Carbide officials and lawyers suggested that a Sikh terrorist group called "Black June" could have been responsible for the catastrophe in Bhopal.
55. In response to a question from the Times of London, on August 8, 1986, Union Carbide stated for the first time that the Bhopal Disaster was "a deliberate act." On November 21, 1986, Union Carbide’s officials stated that they would divulge the name of the disgruntled employee who allegedly caused the Disaster at the appropriate time in court. On July 2, 1987, at a press briefing in Bombay, Union Carbide presented its ‘evidence’ of the sabotage theory to the media. On May 10, 1988, Union Carbide released the results of an investigation it had commissioned from Arthur D. Little, Inc. which purportedly confirmed "with virtual certainty" its sabotage theory. To date, Union Carbide has never divulged the name of the alleged saboteur.
56. Union Carbide’s ‘sabotage’ theory posits that a disgruntled operator entered the MIC unit during the workers’ tea break, disconnected the pressure indicator on tank 610 and attached a water hose to the opening. Publicly, Union Carbide continues to maintain that an unidentified saboteur caused the Bhopal Disaster despite overwhelming evidence that its own policies of reckless disregard were responsible. Yet, the Defendant’s account flatly contradicts the testimony of Jackson Browning, Union Carbide’s former Vice-President for Health Safety and Environmental Affairs, who testified according to an article dated April 8, 1985 in Chemical & Engineering News before Congress "that the MIC tank line fittings are color-coded and that the water line couplings are incompatible with the gas line couplings that go into the tank."
57. Furthermore, the operational safety manual of UCIL in 1978 clearly indicated that, at 20 degrees Celsius, the temperature of the MIC in storage tank 610, the "induction period" required for the exothermic reaction with water alone requires at least 23 hours to take effect. When questioned on the glaring inconsistency in this version of events by journalists from The Gaurdian (London), Union Carbide’s response was reported in an article dated August 20, 1998 as follows:

The company has conducted an investigation whose results, it says, "positively confirm a reaction time consistent with entry of the water . . . two hours before the safety valve unseated." But that is as far as the company goes. It has never

published any findings from this research, not in the paper to the Institute of

Chemical Engineers nor in the scientific literature, which would have allowed

independent researchers to verify the claims.

58. Even if these allegations of sabotage were true, which Plaintiffs deny, Defendant Warren Anderson has affirmatively stated, in a March 1985 press conference, that it was Union Carbide’s responsibility to take such precautions as necessary to prevent any potential act of sabotage turning into a catastrophe of historic proportions. In response to press inquiries regarding his suggestion of sabotage at the Bhopal plant, Mr. Anderson stated:

Well, that’s always a potential and you have to worry about it. That’s why you need the redundancy… Built into the safety system are a whole series of capabilities that can take care of whatever inadvertent action or commission has taken place so you’re not all dependent on just one item to either make it safe or make it unsafe.

59. However, the most telling refutation of this theory is the fact that Union Carbide’s co-accused in the criminal case have abandoned it. According to an article which appeared in The Pioneer newspaper on February 27, 1993, Indian managers and officials of UCIL, whose prosecution on charges of culpable homicide is presently continuing, have admitted that the water-washing scenario, instead of sabotage, caused the Disaster. According to this article, defense counsel for the accused informed the Bhopal District Court "that the water did indeed enter tank 610 through the Relief Valve Vent Header (RVVH) as a consequence of water washing being undertaken by plant personnel instructed to do so by their superiors."
60. Union Carbide has not only misrepresented the scientific evidence of its responsibility for perpetrating the worst peacetime environmental catastrophe in history, but has continuously attempted to mischaracterize its relationship with its Indian affiliate, UCIL, as an ‘arms-length’ or contractual provider of technology. Not only was UCIL an alter ego or agent of Union Carbide, but the evidence demonstrates that Union Carbide exercised complete control over UCIL as part of its operation as a multinational enterprise.

Union Carbide: The Multinational Enterprise

61. At the time of the Bhopal Disaster, Union Carbide was a multinational corporation which operated an integrated worldwide empire of business facilities through an internal network of ownership and interlocking directors, common operating systems and procedures, as well as global distribution and marketing and shared financial and technical resources. Because of its structure as a multinational enterprise, Union Carbide was able to design, construct, own, operate, manage and control various undertakings worldwide, including UCIL in Bhopal.
62. Defendant Union Carbide’s management principles for controlling its global network are developed in a series of policy manuals which were enforced worldwide. The policies set forth in those manuals apply to all subsidiaries, which are defined as affiliates in which Union Carbide’s ownership exceeds 50 percent. Union Carbide owned 50.99% of UCIL at the time of the Disaster, thus making it in Carbide’s own terminology a subsidiary. Pursuant to Union Carbide’s internal policies, a subsidiary could not change the substance of any policy without review by the parent corporation.
63. During this period of time, Union Carbide's corporate charter (§ 1.5.4) provided that the management system of the multinational is "designed to provide centralized, integrated corporate strategic planning, direction, and control." The Company's corporate policy manual states that "it is the general policy of the Corporation to secure and maintain effective control of an Affiliate." In addition, Union Carbide’s Health, Safety and Environmental Affairs Department was delegated: "The duty and authority to conduct periodic audits of… international affiliates relative to health, safety and the environment for adequacy of their management system." The manual also declares that Union Carbide's headquarters in Danbury was responsible for taking all "positive steps to assure that all operations are conducted according to superior standards of safe designs and practices." In the words of Union Carbide’s own manuals, all accidents involving fatal or serious injuries "will be reviewed by the UCC chief executive officer." During the period in question, the Chief Executive Officer of Union Carbide was Defendant Warren Anderson.
64. Union Carbide’s policy manuals on personnel safety indicated an even more direct and detailed role for the U.S. corporation with respect to its worldwide subsidiaries. It states that Union Carbide will:

Design, construct, operate and maintain facilities in accordance with safety standards that equal or exceed applicable legal requirements and mandated standards of safety.

* * *

Maintain management control systems to assure that Corporate policies and procedures on safety are observed.

* * *

Share safety related information and practices between components with similar operations worldwide.

Defendant Warren Anderson, the former chairman of the board and chief executive officer of Union Carbide, in the March 20, 1985 press conference, succinctly summed up the effectively complete control which the company exercised over its international subsidiaries: "I am telling you if I knew personally of any location in the corporate world of Union Carbide that had an unsafe operation it would have been shut down."

65. Just how close the relationship between Union Carbide and UCIL actually was can be determined by examining their interlocking directorates and corporate structure. At least four senior executives of Union Carbide’s regional division at the time, Union Carbide Eastern, were members of UCIL’s board of directors. UCIL’s budgets, major capital expenditures, policy decisions and company reports had to be approved by Union Carbide’s corporate headquarters. Moreover, UCIL formed an integral component of Union Carbide’s agricultural products division, i.e. Union Carbide Agricultural Products Company ("APC"), and was directly under the managerial control of the director, APC, who in turn occupied the position of executive vice-president of Union Carbide Corporation, the parent company. In this way, the chain of command traveled directly from Bhopal all the way to corporate headquarters in Danbury, Connecticut.
66. Union Carbide’s equity ownership of 50.99% of UCIL is significant not only for the purposes of demonstrating control over the operations and policies of the Indian company but also in terms of Union Carbide’s overall responsibility for the Disaster. From 1966 until approximately 1978, Union Carbide owned 60% of the outstanding equity of UCIL. On January 1, 1974, however, India enacted the Foreign Exchange and Regulation Act ("FERA") which required all foreign equity holdings to be reduced to no more than 40%. UCIL was one of the companies affected by FERA since it had a foreign equity ownership of 60% when FERA came into force.
67. In order to avoid the application of FERA, which would reduce its equity share of UCIL, Union Carbide submitted a plan and proposal to the Government of India to produce MIC at its Bhopal plant which, under a specific statutory exemption to FERA, would enable the Defendant to retain majority control since it was engaging in production of a nature which required high-technology inputs not available in India. Therefore, the very decision to manufacture MIC at the Bhopal plant was made by Union Carbide in furtherance of its corporate policy to secure and maintain "effective control" of an affiliate. Indeed, Union Carbide actually produced an internal manual "Legal Control of a 50-50 Joint Venture Affiliate" which lists a number of "devices or expedients" on how to retain control of an affiliate. Another publication entitled "Master Guidelines and Check List for Matters to be Considered in Organizing and Reorganizing Equity in an Affiliate" details how to accomplish this key corporate objective. Since FERA prohibits foreign equity holdings of 51% or greater, Union Carbide was able to secure its exemption and retain precisely 50.99% of its ownership of UCIL.

Union Carbide in Bhopal: A Pattern of Reckless Disregard

68. The 1979-80 decision to "backwards integrate" the UCIL facility in order to maintain Union Carbide’s control of the affiliate was critical insofar as it entailed a change in technology and a dramatic increase in the magnitude of serious risk, associated directly with production of MIC. Not only did Union Carbide's planning fail to account for this increased risk at the Bhopal plant, but the company systematically ignored it and made no effort to take even minimal precautions with regard to emergency preparedness should those risks ever eventualize. Even before the approval of the Foreign Collaboration Agreement to produce MIC in Bhopal, for example, Union Carbide caused its Indian subsidiary to petition the Government of India to grant permission to UCIL to send engineers to the U.S. for training by Union Carbide. One of the stated purposes of these training visits was to "evaluate the minimum requirements of instrumentation suiting Indian conditions" and to identify "sophisticated instrumentation which can be dispensed with under Indian conditions." In this regard, it is critical to note – both in terms of the control that Union Carbide exercised over UCIL and its overall double standards as applied to the Indian facility - that Union Carbide engineers in the United States began to design the Bhopal MIC plant at least one year prior to entering into a formal agreement with UCIL for design and technical services.
69. In December 1984, at the time of the Disaster, several public financial institutions owned by the Government of India were shareholders of UCIL, namely: Unit Trust of India, Industrial Credit and Investment Corporation of India, Ltd., Industrial Development Bank of India, Industrial Finance Corporation of India and General Insurance Corporation of India (and its subsidiaries). These Government of India financial institutions held, amongst them, 20.12% of the paid up shares of UCIL in February 1980, when the MIC unit was started up, and approximately 24.85% of outstanding capital in December 1984. A nominee of the public financial institutions was a member of the Board of Directors of UCIL since 1983. Yet, despite specific requests by the state and central governments for more information on the design hazards inherent in the MIC process, Union Carbide refused to provide technical literature to any public authorities on these subjects on the grounds that such information was "confidential."
70. Union Carbide made the corporate decision to locate the MIC facility on the campus of the UCIL plant itself, adjacent to the already existing residential neighborhood and barely two kilometers from the railway station. Pursuant to the Madhya Pradesh State Government's 1975 Bhopal Development Plan, local zoning regulations would have required the MIC unit to be located, along with other hazardous or polluting industries, in the northeast corner of the city away from and downwind of densely populated or congested areas. Therefore, UCIL's initial application for a municipal permit for the MIC unit was rejected, in accordance with the 1975 Bhopal Development Plan, and an advisory notice to relocate was served upon it by M. N. Buch, a state government official instrumental in preparing the 1975 Plan. However, Union Carbide was able to utilize its influence with governmental authorities to ensure that the permit was eventually granted.
71. From the earliest stages, Union Carbide was aware that its plan would necessitate storage of the chemical in extremely large amounts and that this was inherently unsafe. Edward Munoz, a former Union Carbide employee initially in charge of the project, warned company officials of the danger incurred in storing the lethal chemical in such large quantities and recommended storage in smaller amounts. In a sworn affidavit, he states that this recommendation was overridden by Union Carbide’s officials in America. In any case, the poor local infrastructure of the city, the population density of the impoverished residential areas surrounding the plant, and the lack of technological support and emergency measures provided the Bhopal facility should have alerted Union Carbide to the fact that the overall environment for the project rendered it ultrahazardous or, at the very least, compelled a greater degree of ongoing management of risk. As Roger Aitla, a former Union Carbide safety engineer involved in the planning of the Bhopal plant, has testified under oath in prior litigation: "There is no question that they [Union Carbide] knew what they were dealing with."
72. Union Carbide owned and operated a sister MIC plant in Institute, West Virginia, and technical comparisons between the Bhopal facility and the American one show substantial differences in the way in which the plants were designed and operated. Plaintiffs allege that Union Carbide deliberately followed a policy of double standards with regard to its Indian operations, from the design stage, implemented by Union Carbide's American management despite the fact that the Company's Foreign Collaboration Agreement with the Indian authorities expressly required the plant to be designed in accordance with "state-of-the-art standards." The evidence unmistakably supports the conclusion that this policy was motivated by Union Carbide’s racially discriminatory appraisal of the value of life and limb of the communities surrounding the UCIL facility in Bhopal vis-à-vis those near its plant in Institute, West Virginia.
73. While the plant in West Virginia was designed with computerized warning and monitoring systems, the Bhopal facility was made to rely on manual gauges and the human senses as warning devices. Further, the capacities of the storage tanks, vent-gas scrubbers, and flare tower were substantially greater at the former. Emergency preparedness and evacuation plans were in place at the Institute facility, whereas such concerns were nonexistent at Bhopal. A list of the specific technical failures at the Bhopal facility at the time of the leak offers a non-exhaustive record of the precise extent of this double standard:
1. the refrigeration unit installed to cool the MIC and prohibit chemical reactions had been shut off for three months;
2. no effective warning signals were in place (the alarm on the storage tank failed to sound and alert the employees of the radical increase in temperature in tank 610 on the night of the Disaster);
3. the vent-gas scrubber, the plant's main instrument for neutralizing toxic gases in case of leak, had been shut off for maintenance;
4. the flare tower, designed as the plant's second line of defense against a leak of toxic gases, was shut off;
5. unreliable temperature and pressure gauges that were routinely ignored (as on the night in question);
6. water sprayers, which were supposed to aid in neutralizing the gas while it was 'burnt off' in the flare tower, were incapable of even reaching the flare tower;
7. tank number 610 was filled above recommended capacity; and
8. the storage tank which was supposed to function in a reserve capacity for storing excess MIC already contained MIC.
74. Union Carbide's own internal rules formulated by the Company's management explicitly ratified this double standard when, in 1984, in order to circumvent the problem of the Bhopal facility's ongoing breach of the Company's safety policies, the Union Carbide chose to rewrite those rules rather than rectify the breaches. Whereas the 1978 MIC operating manual specified that MIC should be stored at a temperature of 0 degrees C (32 degrees F) and insisted that the vent-gas scrubber must be kept operational 24 hours a day so long as hazardous materials were stored at the site, the 1984 version permitted the scrubber to be shut off when the plant was not in operation and made possible the closing off of the MIC refrigeration unit as a consequence of allowing higher storage temperatures for the chemical.
75. The risks to which Union Carbide exposed the surrounding community of largely poor wage laborers were more than foreseeable. On December 25, 1981, a leak of phosgene killed one worker, Ashraf Khan, at the plant and severely injured two others. On January 9, 1982, twenty five workers were hospitalized as a result of another leak at the plant. During the "safety week" proposed by management to address worker grievances about the Bhopal facility, repeated incidents of such toxic leakage took place and workers took the opportunity to complain directly to the American management officials present. Yet another leak on October 5, 1982 affected hundreds of nearby residents. Starting in 1982, a local journalist named Rajkumar Keswani had frantically attempted to warn of the dangers posed by the facility. In September of 1982, he wrote an article entitled "Please Save this City." Other articles, written later, bore grimly prophetic titles such as "Bhopal Sitting on Top of a Volcano" and "If You Do Not Understand This You Will Be Wiped Out." Just five months before the tragedy, he wrote his final article: "Bhopal on the Brink of a Disaster."
76. Furthermore, in May 1982, Union Carbide sent a team of U.S. experts to inspect the UCIL facility as part of its periodic safety audits. This report, which was forwarded to Union Carbide's management in the United States as well as to their Indian affiliates, speaks unequivocally of a "potential for the release of toxic materials" and a consequent "runaway reaction" due to "equipment failure, operating problems, or maintenance problems." In fact, the report goes on to state rather specifically: "Deficiencies in safety valve and instrument maintenance programs.... Filter cleaning operations are performed without slipblinding process. Leaking valves could create serious exposure during this process." In its report, the safety audit team noted a total of 61 hazards, at least 30 of which were major and 11 of which were specifically identified as hazards in the MIC/ phosgene units.
77. Evidence of racial discrimination as a matter of systematic corporate policy on the part of Union Carbide in its management and operation of the Bhopal plant can be demonstrably established by the fact that, after the Company's management evaluated this report, remedial measures were undertaken and implemented forthwith at the company's "sister-plant" in Institute, West Virginia, whereas nothing was done at the Bhopal facility. Another example of this policy of discriminatory imposition of needless and serious risk at UCIL is the fact that the West Virginia plant was designed with separate storage tanks for off-grade MIC where it could be tested for its purity whereas, in Bhopal, MIC that did not meet with specifications was simply mixed with previously stored material, introducing yet another source for large scale contamination.
78. Union Carbide's complete disregard for the welfare of the community living near the Bhopal facility, as well as its racially discriminatory intent, was further exemplified by the double standard it applied in terms of emergency preparedness. First of all, as opposed to the sophisticated plans in place at the Institute, West Virginia facility, there were no emergency mechanisms or evacuation plans in place at Bhopal. The community had been given no advance warning of any potential danger emanating from the plant and were not even told of the significance of the factory's public danger alarm.
79. Sometime in 1982, UCIL had delinked the siren from the alarm so that only their employees would be alerted without "unnecessarily" causing "undue panic" over "routine minor leaks" among the surrounding populace. In any case, this muted alarm would have meant nothing to the residents of Bhopal. As several studies of the Disaster explain, had the local residents even known to place a wet towel over their faces, hundreds of lives might have been saved. Had they known where the gas was coming from, or that they should have run against the wind, many injuries might have been avoided.
80. The larger pattern of depraved indifference to the grave risk of serious injury or death posed by the UCIL facility to the communities surrounding the plant is further established by reference to the fact that Union Carbide was clearly made aware of the magnitude of risk which their practices posed and remained consciously indifferent to it. On March 4, 1983, a local attorney, Shahnawaz Khan, served a legal notice on UCIL officials stating that the hazardous substances produced at the plant posed a grave risk to the lives and health of the nearly 50,000 people living in close proximity to it; that numerous accidents, leakages and injuries had occurred at the facility; and that periodic leakage of toxic effluents and gases were contaminating the water wells as well as causing health damage to the surrounding communities. Mr. Mukund, former Works Manager at the UCIL and now accused no. 5 in the criminal case pending in Bhopal District Court, sent a reply to this letter on April 29, 1983 stating that these allegations were baseless and made out of ignorance of the factory operations, and that the UCIL facility posed no threat to the population surrounding the plant.
81. Not only did this pattern of reckless indifference on Union Carbide's part continue after the Disaster, but it too formed a part of the Company's policy. In the crucial hours following the leak, doctors attempting to gather information about the nature of the gas from Union Carbide technicians were met with complete unresponsiveness, since Company policy prohibited employees to speak for the multinational without authorization, especially in emergencies. When Union Carbide's officials finally responded to urgent inquiries from Indian doctors, they merely told the physicians that the gas was "harmless" or like tear gas and that there was "no known antidote." When informed that large numbers of people were choking to death in Bhopal, Union Carbide’s representatives advised Indian physicians that those affected by MIC- exposure should wash their eyes with water and drink plenty of water. Jackson B. Browning, Director of Health, Safety and Environmental Affairs for Union Carbide, a few days later publicly referred to the poisonous chemicals which had killed so many in Bhopal as "nothing more than a potent tear gas." Up until the present, Union Carbide has consistently refused to disclose its medical and scientific research on MIC to public scrutiny, which could aid in the medical treatment of Bhopal victims, on the grounds that this research constitutes a "trade secret."
82. The rationale underlying these systemic lapses can only be understood in the context of the plant's overall history. Almost from the start of its operations, the Bhopal facility had been a financial liability. A number of proposals were forwarded by Union Carbide in order to salvage its future, including a project for converting part of the plant for other purposes. When these proposals fell through, Union Carbide decided to sell the Bhopal unit. This plan, formulated with little or no input from UCIL officials, was abandoned when no buyers were found. Finally, Union Carbide opted for a proposal to dismantle the Bhopal facility outright and ship it to Indonesia or Brazil. The only instance at which the UCIL management was contacted regarding this decision by Union Carbide was when they were ordered to prepare a feasibility study in 1984 for the plan, which was completed on November 29, 1984 - a mere three days before catastrophe.
83. The totality of these facts indicate that Union Carbide deliberately chose to disregard a grave risk to human life and health in an attempt to salvage its profits from UCIL and, to that end, a specific corporate policy of cost cutting was designed, ordered and implemented by Union Carbide's management that required the Bhopal facility to operate on a subsistence or survival basis. This corporate policy is evidenced by several affirmative actions taken by Union Carbide's management, such as (a) the firing of safety teams, (b) disregard of its own internal audits, (c) the downgrading the safety procedures and personnel in 1984, and, most significantly, (d) by the company's redraft of its own policy manual permitting the vent-gas scrubber and the refrigeration unit to be shut down. One important aspect of this policy included utilization of used parts and temporary design modifications instead of replacement of the damaged originals in order to reduce cost. For those reasons, the design modification of the so-called "jumper" or shunt line was approved by Union Carbide’s management in the U.S. in order to avoid incurring the expense of needed repairs.
84. The most dramatic illustration of this discriminatory policy of reckless and depraved indifference can be found in Union Carbide’s decision to allow higher storage temperatures for MIC in order that the refrigeration unit at the UCIL plant – the factory’s main line of defense in case of a leak – could be shut down to save on electricity bills. Kamal Pareek, who was the Safety Officer for UCIL at the time, in a documentary video produced for the World-In-Action program, for Granada Television, UK in June 1985, has stated: "That [refrigeration unit] is the single most routine operating equipment available in Bhopal for keeping MIC at correct storage temperatures. If you take away that, what have you got if have got some sort of an emergency." In response to a question as to why the refrigeration system at UCIL was turned off, Mr. Pareek confirmed: "It was a bid to save electricity or freon gas." The World-In Action documentary was able to confirm the former Safety Officer’s estimates of those savings which amounted to approximately Rs. 500 to 700 a day, or about $20.
85. Union Carbide carried out a deliberate policy of reckless disregard and deliberate indifference to the ultrahazardous nature of MIC and the grave risk to life and health posed by the chemical. Indeed, the virtual breakdown in quality assurance and quality control (QAQC) made what followed all but inevitable. This policy, itself based in large measure on a policy of systematic racial discrimination and reckless and depraved indifference to the grave risk of death and/or severe physical injury posed to the population surrounding the Bhopal plant, ensured the inevitability of Disaster.
86. On November 29, 1999, Greenpeace issued its report entitled "The Bhopal Legacy" which lists the UCIL facility and the area surrounding that facility as one of Greenpeace’s global "toxic hot-spots." The report goes on to confirm scientifically that massive environmental contamination, including contamination of the drinking water of residents in the nearby communities, entirely unrelated to the Bhopal Disaster, has taken place at the UCIL site where large amounts of toxic chemicals and by-products from the factory’s original manufacturing processes continue to pollute the land and water.
87. Soil and water samples taken from UCIL’s site establishes that the facility was dumping large amounts of the chemical by-products generated by its manufacturing processes directly onto the soil in and around the factory complex. This pattern and policy of total disregard and conscious indifference to the effect of its actions on others living near the UCIL facility is strongly supported by the contamination evidence which indicates clearly that this dumping of toxic materials and persistent organic pollutants was taking place well before the Bhopal Disaster took place. The contamination of the soil and water of Bhopal by these toxic effluents continues to effect the health and safety of the residents of Bhopal. In addition, Union Carbide has never conducted any environmental clean-up of the widespread, severe and long-term environmental pollution which it caused in Bhopal.
88. The acts described herein were inflicted by Union Carbide in its supervisory and managerial capacity from the United States, under color of law as a joint venturer with the Union of India within the meaning of 28 U.S.C. § 1983.

PROCEDURAL HISTORY

89. Immediately after the Disaster in 1984, numerous actions were filed against Union Carbide in jurisdictions across the United States. Of these, 145 claims were consolidated by the Judicial Panel on Multidistrict Litigation and scheduled to be heard before Judge John Keenan in the Southern District of New York. On December 3, 1984, an officer filed the First Information Report ("FIR") which formed the basis for the criminal complaint against Union Carbide and others at Hanumanganj Police Station, Bhopal.
90. In March 1985, the Indian Government enacted the Bhopal Gas Leak Processing of Claims Act (the "Bhopal Act") which enabled the Union of India to act as the legal representative of the victims in any claim which arose out of or related to the Bhopal Disaster, provided a foreign court should allow it to do so.
91. On April 8, 1985, the Indian Government filed a complaint on behalf of the Bhopal victims. The legal basis for India's claim rested on theories of absolute liability, strict liability, negligence, breach of warranty and misrepresentation. On July 29, 1985, the Union Carbide's lawyers filed a preliminary motion to dismiss on the grounds of forum non conveniens.
92. On May 12, 1986, Judge Keenan announced his decision to conditionally dismiss the consolidated action from his court on the grounds of inconvenient forum. In Re: Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December 1984, 634 F.Supp. 842, at 867 (S.D.N.Y. 1986). The dismissal was conditioned upon Union Carbide's agreement to the following:

1. Union Carbide shall consent to submit to the jurisdiction of the courts of India and shall continue to waive defenses based upon the statute of limitations;
2. Union Carbide shall agree to satisfy any judgment rendered by an Indian court, and if applicable, upheld by an appellate court in that country, where such judgment and affirmance comport with the minimal requirements of due process;
3. Union Carbide shall be subject to discovery under the model of the United States Federal Rules of Civil Procedure after appropriate demand by plaintiffs.

1. On appeal, only the first of these conditions was upheld in full, whereas the Second Circuit modified the second condition, reasoning that its purpose was fully served by New York’s statute providing for recognition and enforcement of foreign judgments; and the third condition was deleted entirely since the obligation was not reciprocal on the Indian Government. In Re: Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December 1984, 809 F.2d 195 (2d Cir. 1987).
2. In September 1986, the Indian Government revived its suit against Union Carbide in the District Court of Bhopal based on the same causes of action as in the United States forum.
3. Independently of the civil action, India's Central Bureau of Investigation filed criminal charges against the American corporation and its chairman Warren Anderson, its Asian subsidiary, Union Carbide Eastern, Inc., and UCIL as well as eight of UCIL's Indian managers under Sec. 304, 326, 324 and 429 of the Indian Penal Code for culpable homicide, grievous hurt, and causing death by use of a dangerous instrumentality. Charge Sheet dated 30.11.87.
4. On February 14, 1989, after the Supreme Court of India first obtained jurisdiction over the case on the issue of interim relief, Chief Justice Pathak interrupted the proceedings to announce that he felt, in light of "the enormity of suffering occasioned by the Bhopal gas Disaster and the pressing urgency to provide immediate and substantial relief to the victims," the case was "preeminently fit for overall settlement." Union Carbide Corp. v. Union of India, 1 S.C.C. 674, 675 ( 1989). Exercising its powers under Article 142 of the Indian Constitution which enables the Court to fashion any decree for the purpose of accomplishing complete justice in a case, the Supreme Court issued a judicially ordered settlement which directed Union Carbide to pay $470 million in damages in final settlement of all claims of any nature and quashed the criminal charges against Union Carbide and its officials.
5. On February 15, 1989, however, the Indian Supreme Court issued a consequential decree, to which the parties appended a memorandum of compromise, outlining the terms of settlement pending its final approval. Union Carbide Corp. v. Union of India, 1 S.C.C. 674, 675 (1989). The victims' organizations launched legal challenges to both the Bhopal Act and the settlement regarding which they were not even consulted. On April 5, 1989, the Supreme Court agreed to hear these challenges and stayed the legal effect of the settlement pending their outcome. Union Carbide Corp. v. Union of India, 3 S.C.C. 38, at 51-2 (1989)(retaining jurisdiction over Union Carbide in Order dated April 5, 1989). On the challenge to the constitutional adequacy of the Bhopal Act, the Indian Supreme Court noted that judicial construction of the Act would necessarily alter the terms and conditions of the as yet unapproved settlement: "The order was also made on the premise that the Bhopal Gas Leak Disaster (Registration and Processing of Claims) Act, 1985 was a valid law. In the event that the Act is declared void in the pending proceedings challenging its validity, the order dated 14 February, 1989 would require to be reexamined in light of that decision." The Court also reiterated its own constitutional authority to modify the binding terms and conditions of the settlement: "If, owing to the pre-settlement procedures being limited to the main contestants in the appeal, the benefit of some contrary or supplemental information or material, having a crucial bearing on the fundamental assumptions basic to a settlement, have been denied to the Court and that, as a result, a serious miscarriage of justice, violating the constitutional and legal rights of the persons affected, has been occasioned, it will be the endeavour of this Court to undo any such injustice."
6. On December 22, 1989, the Court handed down its judgment upholding the constitutional validity of the Bhopal Act and dismissing this particular petition by lawyers on behalf of the victims. Charan Lal Sahu et al. v. Union of India, 1 S.C.C. 613 (1990). However, in this judgment, the Supreme Court of India substantially limited the scope of the Bhopal Act, as follows:

The Act in question does not even purport to deal with the criminal liability, if any, of the parties or persons concerned nor does it deal with any of the consequences flowing from those. This position is clear from the provisions and the Preamble to the Act. Learned Attorney General also says that the Act does not cover criminal liability... The Act does not, either expressly or impliedly, deal with the extent of the damages or liability. Neither Section 3 nor any other section deals with any consequences of criminal liability.

* * *

For the purpose of determining the constitutional validity of the Act, it is however necessary to say that criminal liability of any of the delinquents or of the parties is not the subject matter of the Act and the Act does not deal with either claims or rights arising out of such criminal liability.

Id. at 682-83 (emphasis added). In holding that any "claims or rights" flowing from Union Carbide's criminal liability were outside the scope of the Bhopal Act or the settlement, the Indian Supreme Court's decision expressly affirmed the proposition of counsel for the victims’ organizations that: "Hence the rights of the citizens to fight for remedies and enforce their rights flowing from the breach of obligation in respect of crime cannot be obliterated." Id. In other words, under the laws of India, the Indian government lacked the authority to compromise any claims or rights connected to or arising from Union Carbide’s criminal liability because the Bhopal Act’s provisions could not extend to any aspect of that criminal liability.

7. As the Court had indicated in its order dated April 5, 1989, this judicial limitation on the scope of the Indian government’s parens patriae authority under the Bhopal Act necessarily required review of the terms and conditions of the Supreme Court’s judicially decreed settlement. Lawyers for Union Carbide, which had tendered the settlement proceeds to the Indian Supreme Court, were fully aware of the legally binding and conclusive effect of such modification upon the settlement and, for precisely those reasons, maintained that an accord and satisfaction existed between the parties precluding such judicial modification. The Indian Supreme Court rejected this argument, holding:

We do not think that the plea of "Accord and Satisfaction" raised by the UCC is also of any avail to it. UCC contends that the funds constituting the subject matter of the settlement has been accepted and appropriated by the Union of India and that, therefore, there was full accord and satisfaction. We find factually that there is no appropriation of funds by the Union of India. The funds remain to the credit of the Registrar- General of this Court in the Reserve Bank of India.

Union Carbide Corp. v. Union of India, Review Petition Nos. 229 and 623-24 of 1989, 70 (1991)("The nature of the present review proceedings… is pre-set by the terms of the order dated 4^th May 1989 as well as what are further necessarily implicit in Sahu decision.") The Court specifically noted that if, upon review, the settlement was set aside, Union Carbide would be entitled to restitution of those funds: "Both on principle and authority it becomes the duty of the court to – as much moral as it is legal – to order refund and restitution of the amount to UCC – if the settlement is set aside." Id. at para. 51. The Court made reference to its unequivocal determination in the Charan Lal Sahu decision, supra, based on the official submission made by the Attorney General of India that "The Government as such had nothing to do with the quashing of the criminal proceedings and it was not representing the victims in respect of the criminal liability of UCC or UCIL to the victims." Id. at para 19. The Supreme Court concluded, therefore, that those portions of the settlement relating to any aspects "touching upon" Union Carbide’s criminal liability be deleted and expunged from the settlement since failure to investigate and prosecute the offences in question would amount to a miscarriage of justice: "It is a matter of importance that offences alleged in the context of s disaster of such gravity and magnitude should not remain uninvestigated. The shifting stand of the Union of India on the point should not by itself lead to any miscarriage of justice." Id.

8. The Indian Supreme Court summarized its final orders and directions in a judicial decree as follows:

We might now sum up the conclusions reached, the findings recorded and directions issued on the various contentions:...

[iii] The contention that the Court had no jurisdiction to quash the criminal proceedings in exercise of its powers under Article 142(1) is rejected. But in the particular facts and circumstances, it is held that the quashing of the criminal proceedings was not justified.

The criminal proceedings are, accordingly, directed to be proceeded with.

Id. at 163. The Court characterized the failure to prosecute Union Carbide on those criminal charges as constituting a "manifest injustice." Further, in order [vi][e], the Supreme Court directed that, in fulfillment of an offer made earlier, Union Carbide must bear the financial burden for establishment and equipment of a hospital of at least 500 bed strength, and its operational expenses for a period of eight years, for the medical surveillance and treatment of the MIC-exposed population of Bhopal. Id. The Court also directed that "the hospital shall be constructed, equipped and made functional within 18 months." Id. at 151.

9. In November of 1991, the criminal cases against all of the accused, including Union Carbide, Union Carbide Eastern, and Warren Anderson, were reinstated by the Chief Judicial Magistrate in the Bhopal District Court. Three summonses had been served on Union Carbide through the United States Department of Justice, and one additional summons had been served through Interpol. On December 7, 1991, the Chief Judicial Magistrate issued a proclamation ordering Defendant Anderson, as accused No. 1, and Union Carbide, accused No. 10, and Union Carbide Eastern as accused No. 11 to appear in court on February 1, 1992 for the commencement of the criminal prosecution. On January 1, 1992, the proclamation regarding Anderson’s appearance was published in the Washington Post.
10. Despite these instructions, on February 1, 1992, Union Carbide, Union Carbide Eastern and Anderson failed to appear as ordered and the Chief Judicial Magistrate declared Anderson, Union Carbide and Union Carbide Eastern to be "proclaimed absconders" for non-appearance in the criminal case. The Chief Judicial Magistrate also ruled that, if the accused parties did not appear on court on March 27, 1992, that Defendant Union Carbide’s properties would be liable to attachment and forfeiture.
11. On February 21, 1992, the proclamation of the Chief Judicial Magistrate declaring Union Carbide an absconder and ordering the company to present itself before the Bhopal District Court on March 27, 1992 was published in the Washington Post. On February 26, 1992, this proclamation was also published in the Times of India.
12. On March 27, 1992, Defendants again failed to appear and a non-bailable arrest warrant for Warren Anderson was issued by the Bhopal District Court. However, attachment of Union Carbide’s remaining assets in India was postponed at UCIL’s request. Although the company had failed to utilize any of its unencumbered funds to establish the hospital required by the directives of the Indian Supreme Court in October 1991, Union Carbide, which was still refusing to appear in the pending criminal prosecution against it, announced in April 15, 1992 that it planned to sell its 50.99% stake in UCIL and has endowed all of its shares to a so-called "Bhopal Hospital Trust." The Indian government, concerned that Union Carbide was attempting to evade the lawful criminal jurisdiction of the Bhopal District Court by selling all of its Indian assets, initiated procedures to prevent Union Carbide from fleeing the country.
13. Consequently, on April 23, 1992, India’s Central Bureau of Investigation filed an application with the Bhopal District Court for attachment of Union Carbide’s assets. In accordance with the Indian Supreme Court’s decision that individual victims and victims’ organizations had standing to assert any "claims or rights" arising from the criminal liability of the accused, Plaintiffs BGPSSS, BGIA and BGPMUS also filed an application before the Chief Judicial Magistrate in Bhopal for such an attachment on April 29, 1992.
14. On April 30, 1992, the Chief Judicial Magistrate refused to recognize Union Carbide’s endowment of its shares to the Bhopal Hospital Trust and expressly concluded that Union Carbide was attempting to frustrate the criminal prosecution pending against it by fraudulently attempting to evade the jurisdiction of Indian courts. As reported in the Wall Street Journal on May 1, 1992, the Chief Judicial Magistrate in pursuance of these applications also "ordered the seizure of all Indian assets of the Danbury Connecticut chemical company as part of the continuing criminal proceedings against Carbide." According to the Wall Street Journal, "Bud Holman, an attorney with the New York law firm of Kelley Drye & Warren, who represents Carbide, reiterated Carbide’s position that the Indian courts have no jurisdiction over the U.S. company… Nor does the court have jurisdiction over former Carbide chairman Warren Anderson, whom the court has ordered to appear and answer charges of culpable homicide relating to the gas leak, Mr. Holman added."
15. On June 22, 1992, the criminal case against nine executives of UCIL was severed from the cases against the three absconding parties, i.e. Union Carbide, Union Carbide Eastern and Anderson, and committed to trial before the Sessions Court, Bhopal. The cases against the absconding accused were to proceed before the Chief Judicial Magistrate, Bhopal, as Miscellaneous Judicial Case No. 91 of 1992.
16. On July 17, 1992, the trial of accused Nos. 2 through 9 and 12 began before the Court of the Additional Sessions Judge, Bhopal. On the same date, India’s Central Bureau of Investigation filed an application before the Chief Judicial Magistrate in Bhopal for the appointment of a receiver for the attached properties of Union Carbide in India. On August 11, 1992, the Madhya Pradesh High Court stayed the appointment of a receiver for the attached properties of Union Carbide in India pursuant to a revision petition filed by UCIL against the order of the Magistrate of the Bhopal District Court.
17. On December 12, 1993, the Supreme Court of India recorded the proposal of Ian Percival, "sole trustee" of the Bhopal Hospital Trust, to raise funds for the long-delayed hospital by sale of the attached shares of Union Carbide in UCIL. The case was adjourned for the Government of India to consider the proposal.
18. In 1993, Judge Keenan dismissed on forum non conveniens grounds a diversity jurisdiction claim filed on behalf of the victims of the Disaster seeking to challenge the settlement in India, holding that the Bhopal Act had conferred upon the Indian Government the authority to settle those claims. The Second Circuit affirmed. Bi v. Union Carbide Chemicals and Plastics Co. Inc., 984 F.2d 582, 586 (2d Cir. 1993). On February 14, 1994, the Indian Supreme Court modified the April 30, 1992 order of attachment by the Chief Judicial Magistrate and permitted Union Carbide to sell its shares in UCIL. The proceeds of the sale, however, were to remain attached by the Bhopal District Court. On September 10, 1994, an announcement was published regarding the sale of Union Carbide’s attached shares in UCIL.
19. An article in Chemical Week, published November 23, 1994, stated: "Criminal charges are still outstanding against Union Carbide India Ltd., [Robert Berzok, Union Carbide’s director of corporate communications] says, but Carbide sold its 50.9% share of that company in September to McLeod Russel Ltd. (Calcutta). ‘Once that deal is closed, we’ll be totally out of it.’"
20. On October 7, 1994, Plaintiffs BGPSSS and BGIA filed petitions before the Chief Judicial Magistrate seeking standing as intervenors pursuant to the Supreme Court’s judgment recognizing standing for individual victims and victims’ organizations with regard to any "claims or rights" arising from Defendants’ criminal liability. The Chief Judicial Magistrate issued an order recognizing the standing of these organizations and formally granted them the status of "Intervenors Assisting the Prosecution." On October 20, 1994, Plaintiffs BGPSSS, BGPMUS and BGIA filed civil writ petitions before the Supreme Court of India in order that the proceeds from the sale of Union Carbide’s shares remain attached under the jurisdiction of the Bhopal District Court. The Trustee of the Bhopal Hospital Trust filed an opposition to these petitions. The Supreme Court ruled that it would not pronounce on the legality of the Bhopal Hospital Trust since the legality of the Trust should properly be decided by the High Court before which a case pertaining to the appointment of a receiver for the attached properties of Union Carbide remained pending. However, the Court authorized a limited fund to be withdrawn from the attached shares which would go towards construction of the much-delayed hospital but the rest of the amount of the sale proceeds would remain attached. The Court also ordered that no funds from the sale proceeds could be utilized for any administrative expenses of the Trust which should be borne by Union Carbide.
21. On August 1, 1995, the sole Trustee of the Bhopal Hospital Trust again filed a civil writ petition before the Supreme Court seeking an additional sum to be withdrawn from the attached proceeds of Union Carbide’s shares in UCIL for the purpose of expanding the proposed 260-bed hospital into a 500-bed hospital as per the directions of the Court in its October 1991 judgment. On September 22, 1995, Plaintiffs BGPSSS, BGPMUS and BGIA filed an application before the Additional Sessions Judge in Bhopal for permission to appear as intervenors in the criminal prosecution of the Indian accused which was granted.
22. On October 5, 1995, UCIL withdraws – without explanation - its petition in the Madhya Pradesh High Court against the order of the Chief Judicial Magistrate directing attachment of Union Carbide’s properties in India and appointment of a receiver for the same. In accordance with the Supreme Court of India’s direction, the issue of the legality of the Bhopal Trust was to be determined by the High Court in its decision pertaining to this petition.
23. On December 10, 1996, the Supreme Court of India ordered the Indian Government to reopen the registry of claims to allow additional people to be registered as victims of the Disaster. This new group of victims is to include children and others omitted from the registry. On April 3, 1996, the Indian Supreme Court authorizes the sole Trustee of the Bhopal Hospital Trust to withdraw the amounts requested from the attached proceeds for the construction of the hospital.
24. On July 10, 1996, Plaintiffs BGPSSS, BGPMUS and BGIA file another petition seeking issuance of non-bailable arrest warrants against Union Carbide (USA) and Union Carbide Eastern as a result of their failure to appear before the Chief Judicial Magistrate in Bhopal. On November 10, 1997, the Indian Supreme Court heard two civil petitions filed by Plaintiffs BGPSSS, BGPMUS and BGIA which challenged the conduct of the Trustee of the Bhopal Trust alleging that he was siphoning off funds from the Bhopal Hospital Trust under the guise of administrative expenses. The Supreme Court directed the Trustee, Ian Percival, to submit details of the administrative expenses related to the construction of the hospital.
25. On November 28, 1997, Plaintiffs BGPSSS, BGPMUS and BGIA again pleaded before the Chief Judicial Magistrate to direct the Central Bureau of Investigation to take immediate steps and initiate proceedings necessary to secure the presence of Warren Anderson and authorized representatives of Union Carbide to face criminal trial in India.

 

EQUITABLE TOLLING & ESTOPPEL

26. No statute of limitations has run on the causes of action stated herein since Union Carbide waived this defense as the first condition of Judge Keenan's dismissal on forum non conveniens grounds. The Defendants should not be entitled, therefore, to the benefit of any statute of limitations on Plaintiffs’ claims.
27. Since Plaintiffs could not raise any claims based on international law prior to the exhaustion of available domestic remedies, no statute of limitations has begun to run on the causes of action stated herein because Plaintiffs and other members of the Class have been pursuing those domestic remedies, without any fault or lack of diligence or due care on their part. In the alternative, the ten-year limitations period applicable to all claims under 28 U.S.C. § 1350 is equitably tolled by Union Carbide's fraudulent and wrongful conduct in fleeing the forum where Plaintiffs were pursuing their domestic remedies against it.
28. Moreover, Defendants falsely represented to the Plaintiffs and other members of the Class that they would comply with the provisions of any judgment rendered by an Indian court that was in accordance with due process and falsely misled and/or induced the Plaintiffs to rely upon the provisions of the Indian Supreme Court’s settlement decree that Union Carbide would subject itself to the criminal jurisdiction of Indian courts when the Company, on its own admission, had no intention of doing so. For all of these reasons, Defendants should be collaterally and equitably estopped from raising the statute of limitations as a defense.
29. No remedy is available to Plaintiffs under the laws of India or before any court in their domestic jurisdiction. Even if any remedy were available, Plaintiffs would be unable to avail themselves of that remedy since Union Carbide has unlawfully refused to be subject to compulsory process in the Indian forum.

Count 1

Violation Of International Criminal Law
Under 28 U.S.C. § 1350

30. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
31. At all relevant times, Union Carbide’s conduct amounted to a violation of international criminal law which prohibits widespread or systematic killings or other inhumane acts perpetrated against a civilian population. This jus cogens norm of international law is defined as encompassing: "atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against a civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the laws of the country where perpetrated."
32. Under this norm of international criminal law, and as evidenced by state practice in international and national prosecutions involving mistreatment of war prisoners and civilians, the term "murder" includes the creation of conditions likely to result in death if the culpable conduct rises to the level of common law manslaughter. Further, international law does not require that any nexus or connection between this norm of international criminal law and armed conflict of any kind whatsoever. Lastly, international law expressly provides for individual liability for this particular offense, even absent state action or any governmental involvement.
33. At all relevant times, Union Carbide had specific knowledge that MIC is an extremely volatile and highly dangerous chemical substance. At all relevant times, Union Carbide’s conduct in failing to design, construct, maintain and operate a safe plant exposed the people of Bhopal in its environs to a grave risk of serious harm and/or death which was foreseeable and which Union Carbide knew might occur. With knowledge of the foregoing, Union Carbide caused to be implemented, directed and supervised a deliberate policy of double standards in the design, operation, safety facilities and emergency-preparedness of its UCIL plant when compared to the plant in Institute, West Virginia. Further, with knowledge of the foregoing, Union Carbide directed, supervised, controlled and/or caused to be implemented a specific policy of cost-cutting which resulted in the UCIL facility operating on a subsistence basis, thereby creating conditions that could foreseeably result in widespread death and serious physical injury to Plaintiffs and other Class members.
34. As a direct and proximate result of the conduct of Union Carbide, numerous thousands of class members, including the Plaintiffs, suffered agonizing, lingering and excruciating deaths, serious and permanent injuries, including but not limited to, acute respiratory distress syndrome, ocular and gastrointestinal injuries, and pain, suffering and emotional distress of immense, continuing proportion. The survivors, who experienced an unimaginable and unforgettable catastrophe, witnessing the virtual destruction of their families and entire communities, have suffered and will continue to suffer severe psychological distress. Further injuries to such persons through the manifestation of illnesses, and to generations not yet born, are reasonably certain to occur in the future. As a further direct and proximate result of Union Carbide’s conduct, the families and relatives of the dead have suffered, and will continue to suffer, from the loss of support, aid, comfort, society and companionship of the deceased. Finally, as another direct and proximate result of Union Carbide’s conduct, numerous Plaintiffs and Class members have lost personal income, are unable to work as a result of their injuries and have been reduced to penury.
35. Defendant Union Carbide’s conduct as described herein was unlawful, reckless, malicious and reprehensible and was in deliberate, conscious and wanton disregard of the lives, rights and safety of the residents of Bhopal.

Count 2

Racial Discrimination In Violation Of International Law

Under 28 U.S.C. § 1350

36. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
37. The acts described herein were the direct consequence of Union Carbide's deliberate policy of systematic racial discrimination against Plaintiffs, which took place under color of law and actual or apparent authority within the meaning of 42 U.S.C. §  1983 because Union Carbide acted as a joint venturer with the Union of India which held a direct financial stake in the UCIL facility.
38. Customary international law not only prohibits racial discrimination, but the norm rises to the level of a jus cogens prohibition. The International Convention on the Elimination of All Forms of Racial Discrimination ("ICERD") defines racial discrimination in Article 1 as "any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms." Further, the International Covenant on Civil and Political Rights, to which the United States is a party, prohibits all acts of state discrimination, not just systematically discriminatory policies.
39. The ICERD, one of the most widely endorsed human rights treaties that is universal and legally binding as customary international law, prohibits discrimination which impinges upon fundamental human rights and/or freedoms guaranteed in its provisions without requiring that it be systematic. Furthermore, under customary international law, the Universal
    
40. Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights as well as the ICERD do not require discriminatory intent in order to establish a violation of the norm prohibiting racial discrimination.
41. As a direct and proximate consequence of Union Carbide's policies of racial discrimination, Plaintiffs were placed in great fear for their lives, were forced to undergo severe physical and psychological anguish, and were deprived of the right to earn a livelihood including the support of their family members, and suffered death or extremely serious, permanent physical injuries.
42. Defendant Union Carbide’s conduct as described herein was unlawful, reckless, malicious and reprehensible and was in deliberate, conscious and wanton disregard of the lives, rights and safety of the residents of Bhopal.

Count 3

Cruel, Inhuman And Degrading Treatment
Under 28 U.S.C. § 1350

43. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
44. The intentional and outrageous conduct of Union Carbide had the effect of grossly debasing the value of life of class members including the Plaintiffs and subjecting them to extreme humiliation by directing policies based on contempt of their very existence. As a result of Union Carbide's inhumane actions, many of the victims of the Bhopal Gas Disaster have undergone excruciating deaths, while many of those who have survived the Disaster have been forced to live in penury and to suffer debilitating illnesses without medical attention.
45. Union Carbide's conduct resulted directly, through permanent or lasting defects to the Plaintiffs' chromosomal structure, or through birth defects or neurological illness which are the result of exposure of class members including the Plaintiffs to toxic chemicals, in derogation at the most fundamental possible level of the inherent, basic human rights guaranteed by customary international law. By Union Carbide's acts, Plaintiffs have been fundamentally harmed in their persons and forced to experience genetic defects, congenital abnormalities, mental disorders and illness of various kinds, that affect their most basic integrity as human individuals.
46. As a result of Union Carbide's conduct, many of the Plaintiffs have suffered chromosomal damage, spontaneous abortions and birth defects that have caused lasting emotional, psychological and physical trauma, and have had their lives egregiously devalued and debased by Union Carbide's pattern of degrading conduct, including Union Carbide's withholding of information from the doctors treating Plaintiffs after the Bhopal Disaster. Under Article 16 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, all states parties undertake to prevent such "other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture."
47. Defendant Union Carbide’s conduct as described herein was wanton, reckless, malicious and reprehensible and was in deliberate, conscious and wanton disregard of the lives, rights and safety of the residents of Bhopal.

 

Count 4

Violation Of The Rights To Life, Health And Security Of The Person
Under 28 U.S.C. § 1350

48. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
49. The right to life is the most fundamental of human rights and has been widely recognized as a non-derogable norm of customary international law in almost every international instrument. Without question, therefore, this right is both universal and obligatory under international law. The right to life is specifically applicable to cases involving severe environmental harm. For example, the United Nations Human Rights Committee has expressly ruled that a complaint alleging large-scale dumping of nuclear waste which threatened the lives of local residents stated a prima facie case for a violation of the right to life under Article 6(1) of the International Covenant on Civil and Political Rights.
50. A wide variety of international instruments including, but not limited to, the International Convention on Economic, Social and Cultural Rights ("ICESCR")(art. 12), the Universal Declaration of Human Rights (art. 25), the African Charter (art. 16), the American Declaration (art. XI), the Rights of the Child Convention (art. 24), contribute to the consensus that the right to health constitutes a peremptory norm of customary international law. The ICESCR, the Vienna Declaration and the U.N. Human Rights Commission have all found environmental destruction and pollution to threaten the right to life and/or health are cognizable violations of international law.
51. International law has recognized that harm which threatens human life or health necessarily implicates a violation of the right to security of the person. The Universal Declaration of Human Rights affords this right a primacy equivalent only to the right to life, stating that "[e]veryone has the right to life, liberty and the security of the person." The right to security or integrity of the person as a norm of customary international law may also be found in numerous other sources, e.g., the European Convention on Human Rights (art. 5).
52. Union Carbide’s unlawful conduct violated the Plaintiffs’ fundamental human rights including the following: right to life, health and security of the person as guaranteed in Article 3 of the Universal Declaration of Human Rights and Article 7 of the Universal Declaration which provides that "[a]ll are entitled to equal protection against any discrimination in violation of this Declaration." Further, Union Carbide’s conduct violated Article 6(1) of the International Covenant on Civil and Political Rights which states "[n]o one shall be arbitrarily deprived of his life" and Article 9(1) of the Covenant which expressly recognizes the right to security of the person. Since these treaties and conventions are declaratory of customary international law, Plaintiffs assert the violation of these rights as violations of the peremptory norms of the law of nations.
53. Defendant Union Carbide’s conduct as described herein was unlawful, reckless, malicious and reprehensible and was in deliberate, conscious and wanton disregard of the lives, rights and safety of the residents of Bhopal.

Count 5

Violations Of International Environmental Law
Under 28 U.S.C. § 1350

54. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
55. International law, as evidenced by a number of widely adopted international instruments, has recognized a minimum right to a safe environment as a customary norm. In the Stockholm Declaration on the Human Environment, 114 nations declared that "[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well being, and he bears a solemn responsibility to protect and improve the environment for present and future generations." In the Rio Declaration on Environment and Development, 178 states affirmed in Principle 1 that human beings "are entitled to a healthy and productive life in harmony with nature." Article 11(1) of the Additional Protocol to the American Convention on Human Rights, for example, provides that "[e]veryone shall have the right to live in a healthy environment."
56. The Declaration of the United Nations Conference on the Human Environment, Principle 21, establishes under international law "the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other
    
57. States or of areas beyond the national jurisdiction." In the Convention on the Transboundary Effects of Industrial Accidents, the Preamble cites Principle 21 of the Declaration as well as the "polluter-pays principle as a general principle of international environmental law." Further, the Convention provides, as an instrument "[u]nderlining the principles of international law and custom," that the Parties to the Convention such as the United States "shall, in accordance with their legal systems… provide natural or legal persons who are being or are capable of being adversely affected by the transboundary effects of an industrial accident in the territory of a Party, with access to, and treatment in the relevant administrative and judicial proceedings, including the possibilities of starting a legal action and appealing a decision affecting their rights, equivalent to those available to persons within their own jurisdiction."
58. Both international practice and domestic custom support the universal and obligatory nature of a international legal norm prohibiting widespread, severe and long-term environmental harm that threatens internationally recognized rights to life, health and security of the person. In total, states have adopted some 350 multilateral treaties and 1,000 bilateral treaties protecting the environment. In domestic legal systems, an obligation to protect the environment or the right to a safe environment is enshrined in the constitutions of approximately 60 nations. Therefore, at a minimum, customary international law provides that large-scale environmental harm which threatens the right to life and security of the person constitutes a violation of its jus cogens.
59. As a result of Union Carbide's conduct, Plaintiffs’ rights under international environmental law were violated by the introduction of toxic chemicals and other waste materials from the leak of MIC into the city of Bhopal. This contamination continues to this day to pollute the Plaintiffs' environment and habitations in water, livestock, agricultural products, soil and air, in violation of customary international law regarding protection of the human environment.
60. Defendant Union Carbide’s conduct as described herein was unlawful, reckless, malicious and reprehensible and was in deliberate, conscious and wanton disregard of the lives, rights and safety of the residents of Bhopal.

Count 6

Consistent Pattern Of Gross Violations Of Human Rights
Under 28 U.S.C. § 1350

61. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
62. Customary international law, which forbids even a single violation of its fundamental rights and peremptory norms, such as the right to life, also provides that a separately cognizable violation may be based on an aggregation of such violations. International law prohibits a consistent pattern of gross violations of internationally recognized human rights perpetrated under color of law. Where, as here, the violations in question are repeated and/or severe enough to give rise to numerous claims, the Alien Tort Claims Act (28 U.S.C. § 1350) provides that the conduct in question may be actionable as a "consistent pattern." According to the Restatement (Third) of Foreign Relations Law, this norm forbids "infringements of recognized human rights that are not violations when committed singly or sporadically."
63. Union Carbide’s conduct, as described herein, amounted to a consistent pattern of gross violations of recognized human rights insofar as Union Carbide operated and maintained a plant in Bhopal, India which continuously posed a grave risk of death and/or serious physical injury to the surrounding population; that each incident manifesting its depraved indifference to the grave risks posed to that population amounted to a violation of recognized human rights to life, health and security of the person; that there were several, repeated incidents of such toxic leakage which injured workers and hundreds of nearby residents; and that Union Carbide on each occasion ignored the grave risk of death and serious physical injury posed by its facility in Bhopal. In addition, Union Carbide’s conduct after the Bhopal gas disaster demonstrates a consistent pattern of gross violations of recognized human rights because of its failure to provide adequate information about MIC to those treating the victims, including, but not limited to, Union Carbide’s failure to disclose any information on the medical consequences, toxicity or ultrahazardous character of MIC prior to and after the occurrence of the Disaster. Further, Union Carbide’s purposeful absconding from the criminal jurisdiction of India’s courts also represents a continuous, ongoing violation of the Plaintiffs' right to a remedy at law in violation of customary international law, as embodied in Article 8 of the Universal Declaration of Human Rights which states that "[e]veryone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights guaranteed to him by constitution or by law" and Article 2(3) of the International Covenant on Civil and Political Rights.
64. Defendant Union Carbide’s conduct as described herein was unlawful, reckless, malicious and reprehensible and was in deliberate, conscious and wanton disregard of the lives, rights and safety of the residents of Bhopal.

Count 7

Civil Contempt Under 18 U.S.C. § 401

65. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
66. On May 12, 1986, the United States District Court for the Southern District of New York dismissed, on grounds of forum non conveniens, actions arising from the Bhopal Disaster to which Defendant Union Carbide was a party. In Re: Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December 1984, 634 F.Supp. 842, at 867 (S.D.N.Y. 1986). The dismissal was conditioned upon Union Carbide’s agreement "to submit to the jurisdiction of the courts of India." Further, the dismissal required that "Union Carbide shall agree to satisfy any judgment rendered by an Indian court, and if applicable, upheld by an appellate court in that country, where such judgment and affirmance comport with the minimal requirements of due process."
67. Defendants should be held in contempt for their willful, intentional and flagrant disobedience of the orders of this Court requiring Union Carbide to submit to jurisdiction in India and to abide by the terms of any judgment rendered by the Indian courts. These orders were expressly agreed to by Union Carbide as a legal condition precedent to dismissal on forum non conveniens by Judge Keenan. By deliberately failing to obey the directives of the Supreme Court of India’s civil judgment in October 1991, Defendants violated these conditions to the extent that Union Carbide did not fully submit itself to the jurisdiction of Indian courts.
68. Defendants should be held liable in civil contempt for failure to obey the Court’s order because the order was clear and unambiguous, proof of non-compliance is incontrovertible and convincing and because Union Carbide was not reasonably diligent in attempting to accomplish what was ordered. A civil contempt sanction may be imposed, therefore, for the purposes of coercing future compliance with that order as well as for compensating Plaintiffs and Class members for losses caused by the contemnor’s past noncompliance.

Count 8

Actual And Constructive Fraud

69. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
70. After February of 1989, Plaintiffs challenged the terms of the proposed settlement entered into between Union Carbide and the Indian government before the Supreme Court as petitioners. In October of 1991, the Supreme Court of India issued a civil judgment approving the settlement between Union of India and Union Carbide with the express judicial mandate, requested by Plaintiffs, that the criminal charges against it be reinstated and that the prosecution of those charges should be proceeded with in order to avoid a "manifest injustice." In addition, the Supreme Court ordered Union Carbide to abide by its earlier offer to construct a hospital in Bhopal for the medical treatment of disaster victims. Union Carbide, a party to the judgment and directives of the Indian Supreme Court, was and is bound by those orders. However, in flagrant contravention of the conditions imposed on it by U.S. courts as well as by the Supreme Court of India, Union Carbide willfully and intentionally chose not to comply with any of these directives.
71. Despite repeated summons served upon Union Carbide through the U. S. Department of Justice as a result of letters rogatory issued by the Bhopal District Court, Union Carbide has willfully refused to submit to the lawful jurisdiction of India’s criminal courts. Further, the Bhopal District Court has served another summons upon the company’s officials through Interpol and published a notice to appear for trial in the Washington Post. In 1994, after repeated failures to appear for trial on the criminal charges pending against it, the Bhopal District Court ordered that Union Carbide be declared a "proclaimed absconder", a term of art in Indian law which is the equivalent of the term "fugitive from justice" in U.S. law. The Court also ordered the forfeiture of all of Union Carbide’s properties within India.
72. Defendants made material, false representations to Plaintiffs concerning their amenability to jurisdiction and lawful process in the courts of India including, but not limited to, Union Carbide’s agreement to the forum dismissal conditions, as well as Union Carbide’s acknowledgment and acceptance of the Supreme Court of India’s judicial mandate regarding criminal proceedings. Further, the Defendants clearly had an intent to deceive the Plaintiffs by inducing them to accept terms and conditions of settlement with which Union Carbide had no intent to comply.

Count 9
Negligence

73. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
74. Defendant owed a duty to plaintiff and the class to exercise reasonable care in designing, operating and maintaining the UCIL facility as well as in manufacturing the pesticides produced therein and disposing of them properly in connection with their manufacture.
75. Defendant breached its duty of care by engaging in the negligent manufacture and disposal of pesticides, chemicals and toxic effluents which contaminated the land and soil around its facility in Bhopal prior to the Bhopal Disaster and by otherwise failing to employ safe, prudent and technologically current techniques to prevent the discharge toxic chemicals, effluents and other by-products into the environment.
76. Separately from any liability arising from the Bhopal Disaster, Union Carbide was negligent in one, some and/or all of the following respects: in using technology inadequate for the manufacture of pesticides and disposal of chemical by-products of that process; in failing to utilize proper technology and disposal mechanisms to prevent the contamination of the environment surrounding its Bhopal facility with pesticides, toxic chemicals and its by-products; in failing to exercise due care in the manufacture and disposal of its chemical products; in failing to prevent spills, discharges and other leaks of pesticides, toxic effluents and chemical by-products; in failing to warn the inhabitants of the residential communities surrounding its Bhopal facility of the toxicity of the chemicals manufactured therein; in failing to take reasonable precautions or exercise reasonable care to publish, adopt and enforce safe methods of disposal of its pesticides, toxic chemicals and chemical by-products; in failing to disclose to Plaintiffs and the Class medical research and tests conducted by defendant on the toxicity of the products released by defendant into the environment; in failing to test all chemical products released into the environment for adverse health effects, or to cause said products to be tested; in concealing from plaintiffs information concerning the effects of such products in humans and animals; in failing to adequately monitor the health of plaintiffs exposed to toxic chemicals, pesticides or its chemical by-products.
77. Defendant’s breach of duty was wanton, outrageous, reckless and intentional. Defendant made the decision for its own economic gain to dump chemical by-products and toxic effluents from its manufacture of pesticides into the environment, and thereby to expose Plaintiffs and the Class to toxic chemicals including, but not limited to, benzene, lead, mercury, hydrocarbons and other toxins, knowing that such substances were toxic to humans.
78. As a direct and proximate result of Defendant’s breaches of duty, plaintiffs and the class have suffered injuries to their persons and property. Plaintiffs and the class are entitled to recover compensatory and punitive damages in amounts to be ascertained at trial.

Count 10
Public Nuisance

79. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein..
80. Defendant’s conduct and the resulting contamination of the environment in and around its pesticide-manufacturing facility in Bhopal has created a public nuisance which endangers and will continue for many years to endanger the safety, health and comfort of a large number of persons. This contamination has been scientifically determined to be unrelated to the release of toxic chemicals from the UCIL facility on December 2-3, 1984, but has affected the same Class of individuals who were exposed to Union Carbide’s toxic chemicals as a result of the Bhopal Disaster, exacerbating the harm, physical injury and severe damage to health caused by that incident.
81. Plaintiffs and Class members have suffered up special and peculiar harm of a kind different from that suffered by others, in that their health already has been injured, their properties already have been damaged and their sources of clean water and food already have been curtailed by Union Carbide’s conduct in causing the Bhopal Disaster. It has now been determined that their exposure to Defendant’s toxic chemicals continues to this day as a result of the severe contamination of land and water surrounding the UCIL facility in Bhopal.
82. Though it may be liable irrespective of fault, Defendant’s conduct was unreasonable, wanton, outrageous, reckless and intentional, and Plaintiffs and the Class are entitled to recover compensatory and punitive damages in amounts to be ascertained at trial.

Count 11
Private Nuisance

83. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
84. Defendant Union Carbide’s conduct has caused non-trespassory (as well as trespassory) invasions of Plaintiffs’ and Class members’ private use and enjoyment of their land. Plaintiffs and Class members in the residential colonies surrounding the UCIL facility in Bhopal hold lawful title to the properties in which they reside.
85. Defendant’s conduct has been unreasonable in that it has caused severe, annoyance, harm, inconvenience and damage to Plaintiffs’ and Class members’ enjoyment of their private properties.
86. Though may be liable irrespective of fault, Defendant’s conduct was unreasonable, wanton, outrageous, reckless and intentional, and Plaintiffs and the Class are entitled to recover compensatory and punitive damages in amounts to be ascertained at trial.

Count 12
Strict Liability

87. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
88. The technology used by Union Carbide for the manufacture of pesticides at its Bhopal facility was designed, created and used by Defendant to maximize its profits. This technology was defective and unreasonably dangerous.
89. The technology lead to the contamination of the waters of the areas surrounding the Bhopal facility with toxic chemicals, pesticides and by-products without providing adequate warning to Plaintiffs and the Class in their own languages, of the health hazards associated with the exposure to such toxic chemicals and by-products resulting from Union Carbide’s defective and unreasonably dangerous technology.
90. The technology was defectively designed and unreasonably dangerous in that at all times alternative technology existed for the manufacture of pesticides which would function without discharging toxic effluents, chemicals and by-products into the environment, and without creating unreasonable health hazards to Plaintiffs and the Class.
91. Union Carbide was in the business of manufacturing and selling pesticides, and, by use of unreasonably dangerous technology, contaminated the environment, and this contamination is the direct cause of the damages sustained by Plaintiffs and the Class.
92. Plaintiffs and the Class were wholly unaware of the dangerous propensities of the chemicals, pesticides and by-products which rendered them unsafe if spilled and discarded into the environment. Plaintiffs and the Class were exposed to chemicals, pesticides and other by-products in a manner that was reasonably anticipated by Defendant. Defendant intentionally exposed Plaintiffs and the Class to toxic chemicals and by-products by deliberately discarding pesticides, chemicals and other by-products into the environment.
93. Plaintiffs and the Class are entitled to recover compensatory and punitive damages in amounts to be ascertained at trial.

Count 13
Medical Monitoring

94. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
95. As a result of defendant’s negligent and reckless conduct, Plaintiffs and the Class have been significantly exposed to known hazardous substances.
96. As a result of such exposure, Plaintiffs and the Class are at an increased risk of contracting latent diseases, including cancers as well as chromosomal and genetic defects.
97. Early detection and treatment of these diseases is medically necessary and advisable. Up until the present day, Union Carbide has refused to disclose, release or make public its medical, toxicological and other research on the chemicals produced at its Bhopal plant which would facilitate the medical treatment of Plaintiffs and the Class. Defendant continues to maintain that such research is a proprietary "trade secret."
98. Plaintiffs and the Class are entitled to recover the costs of a medical monitoring program, and to recover punitive damages in amounts to be ascertained at trial.

Count 14
Trespass

99. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
100. Defendant’s intentional and reckless acts and omissions have resulted in the discharge of chemicals, pesticides and other pollutants onto the real property of the Plaintiffs and the Class.
101. Such acts and omissions constitute a trespass upon the properties of Plaintiffs and the Class.
102. Plaintiffs and the Class are entitled to recover compensatory and punitive damages as a result of defendant’s trespass in amounts to be ascertained at trial.

Count 15
Equitable Relief

103. Plaintiffs repeat and reallege each and every allegation set forth in the foregoing paragraphs as if fully set forth herein.
104. As a result of Union Carbide’s conduct, Plaintiffs’ properties and environment are highly contaminated with toxic substances. Plaintiffs’ drinking water supplies have been contaminated with carcinogens, rendering them unsuitable for consumption. Indeed, the local and state governments put up warning signs last year at each of the approximately 100 wells adjacent to or near the UCIL facility that the water in those wells is "unfit for human consumption."
105. In the absence of injunctive relief, Plaintiffs will suffer irreparable harm. Plaintiffs do not have an adequate remedy at law.
106. Plaintiffs are entitled to equitable relief to remedy the contamination and spoliation of their properties, water supplies and environment.

 

Demand For Jury Trial

107. Plaintiffs demand a jury trial on all issues.

WHEREFORE, each Plaintiff demands judgment against the Defendants as follows:

1. that the Court certify this case as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure;
2. adjudge and decree that Union Carbide was and is a fugitive from justice for its deliberate evasion of the lawful jurisdiction of the Bhopal District Court where criminal charges remain pending against it;
3. adjudge and decree that Warren Anderson was and is a fugitive from justice for his deliberate evasion of the lawful jurisdiction of the Bhopal District Court where criminal charges remain pending against him;
4. award such compensatory damages to Plaintiffs as allowed by law in an amount to be proven at trial;
5. award punitive and exemplary damages to the Plaintiffs and the Class in an amount to be proven at trial;
6. award reasonable attorney's fees and costs of the litigation;
7.  
8. grant such other and further relief as the Court deems just and proper.

December __, 1999

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