Alison Frankel, AM Law Daily, November 5, 2008
A class action alleging damages from contaminated water near the site of the notorious 1984 Union Carbide gas explosion in Bhopal, India, has had almost as many lives as a cat. On Monday, a three-judge panel from the U.S. Court of Appeals for the Second Circuit reinstated the suit, which had been dismissed sua sponte by Manhattan federal district court judge John Keenan. “The district court,” wrote the appellate judges, “erred in the manner in which it converted the defendants’ motion to dismiss into a motion for summary judgment.”
A version of the case was first filed against Union Carbide and its former CEO Warren Anderson in 2001, a couple years after the British branch of Greenpeace conducted the first tests on water near Bhopal. That suit, fashioned as a class action, sought property and personal injury damages, cleanup of the site, and medical monitoring for the class. The case was dismissed, refiled, and dismissed again, essentially because plaintiffs weren’t property owners and their personal injury claims were barred by the statute of limitations. Then in 2004 a team of plaintiffs lawyers–Cohen Milstein Hausfeld & Toll; Williams Cuker Berezofsky; EarthRights International; and solos Curtis Trinko and H. Rajan Sharma–tried again, filing a new class action that made most of the same allegations as the previous suit but purportedly solved the statute of limitations and standing problems.
Kelley Drye & Warren, representing Union Carbide, moved for summary judgment and a dismissal of the second case. In a 2005 opinion, Judge Keenan dismissed all but one claim. While the plaintiffs’ appeal of that ruling was pending, Keenan addressed the last remaining claim. He granted summary judgement for Union Carbide. “This case is closed,” he wrote in a 2006 opinion that radiates irritation. “The court directs the clerk to remove the case from the court’s docket.”
The appeals court found that Keenan had not given the plaintiffs adequate notice that he was converting the motion to dismiss into a summary judgment motion and did not provide them a chance to oppose summary judgment with evidence and arguments. The Second Circuit reinstated all the claims and remanded the case to Judge Keenan. (One can only imagine his joy at receiving the news.)
“We’re hoping we’ll finally get to the merits of the case,” plaintiffs lawyer Richard Lewis of Cohen Milstein told the Litigation Daily. “This is a very serious problem. Thousands of people are drinking water contaminated with carcinogens.” We also called Union Carbide counsel William Krohley of Kelley Drye for comment but didn’t hear back.

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