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Speaker 1: Washington is the first state to sue agrochemical giant Monsanto

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Speaker 1: over environmental pollution from PCBs, toxic chemicals which Democratic Governor

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Speaker 1: j Instley said are endangering the lives of people, plants,

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Speaker 1: and animals in his state. This lawsuit is about watching

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Speaker 1: out for the health of Washingtonians from this omnipresent and

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Speaker 1: horrifically toxic material. It's hard to overstate the legacy in

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Speaker 1: our state of PCB contamination and around the world's everywhere

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Speaker 1: we look, our food, our fisher, real buttons. Several organizations,

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Speaker 1: including the Environmental Protection Agency, have said PCBs caused cancer

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Speaker 1: and animals and probably are chasinogenic to humans and affect

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Speaker 1: the immune, nervous, and reproductive systems. Congress banned them in

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Speaker 1: nineteen seventy nine, but Washington's Attorney General, Bob Ferguson said

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Speaker 1: that Monsanto produced PCBs for decades after knowing their danger

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Speaker 1: to humans and the environment. In fact, they knew was

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Speaker 1: early nineteen thirties that PCBs were toxic to humans. An

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Speaker 1: internal Monsanto memo from seven warmed up quote systemic toxic

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Speaker 1: effects and quote from prolonged exposures and PCP favors. Monsanto

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Speaker 1: was the only US manufacturer of PCBs, and in suits

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Speaker 1: against it by cities such as Seattle, Portland, Berkeley, and

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Speaker 1: San Diego, the company has argued that PCBs were lawful

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Speaker 1: and served an important fire protection and safety purpose at

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Speaker 1: the time they were sold. Our guest is Charles Warren,

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Speaker 1: a partner at Cramer Levin, lef Talas and Frankel, where

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Speaker 1: he leads the environmental practice and he's a former regional

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Speaker 1: administrator with the e P. A. Chuck, there are smoking

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Speaker 1: guns here. The Washington a g sited a nineteen sixty

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Speaker 1: nine internal memo from Monsanto that it knew about global

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Speaker 1: PCB contamination but concealed it because quote there's too much

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Speaker 1: customer market need and selfishly too much Monsanto profit to

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Speaker 1: go out. Why isn't this an open and shut case?

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Speaker 1: I think June It's said, actually tricky to bring a

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Speaker 1: lawsuit against mont Santo for PCPs. There's a lot of

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Speaker 1: things that go into it. It's somewhat akin to the

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Speaker 1: cigarette situation, where it took a very long time and

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Speaker 1: the first lawsuits against the cigarette companies were dismissed. They

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Speaker 1: finally we're able to prevail, and a lot of the

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Speaker 1: states prevailed really more on consumer protection anti trust laws.

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Speaker 1: And you know, part of the problem here is that

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Speaker 1: you know, there there was sort of a bankruptcy proceeding

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Speaker 1: on the part of Solution, which is uh where mont

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Speaker 1: Santo would split up into Solution and Pharmacy and Montsanto

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Speaker 1: three pieces and Montsanto kept some of the liabilities four PCBs,

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Speaker 1: but they created a trust for claims and stuff like that,

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Speaker 1: and that's an issue that you have to deal with

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Speaker 1: the fact that you had this bankruptcy, which in some sense,

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Speaker 1: you know, extinguishes a lot of claims from the past.

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Speaker 1: And uh so I think I think there's a lot

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Speaker 1: of hurdles to jump over. I mean, they may be

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Speaker 1: able to be successful because in the end, what did

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Speaker 1: the cigarette companies in was that they found old memos

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Speaker 1: and things like that where they knew about the dangers

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Speaker 1: and still kept going. And we'll just have to see

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Speaker 1: if the proof here is the same kind of proof

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Speaker 1: that they found in those situations. And you know, we've

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Speaker 1: seen some of it, but um, I think until you've

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Speaker 1: seen the full evidence, it's gonna be a little hard

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Speaker 1: to predict what's going to happen. Well, the Chuck people

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Speaker 1: have known for a long time that PCBs were dangerous

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Speaker 1: and you know they're outlawed and it's not new news.

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Speaker 1: So why I mean, you know, one of the things

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Speaker 1: that sort of is curious about this is why you know,

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Speaker 1: you could have sued them even without these memos, I suppose.

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Speaker 1: But what what took so long for are An officials

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Speaker 1: to want to bring these kinds of actions? Well, that's

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Speaker 1: that's that's another question that's going to come up. And

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Speaker 1: I think even though the statue of limitations may not

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Speaker 1: affect the state itself, but I think that's going to

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Speaker 1: be an issue. I mean, PCBs have been banned by

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Speaker 1: law since ninety six, so like Congress, and uh, they

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Speaker 1: haven't been produced since then. And a lot of these

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Speaker 1: things are uh you know, have have been there out

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Speaker 1: there a long time, and they're alleging damage to water

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Speaker 1: bodies and stuff like that that's obviously occurred over many

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Speaker 1: many years. And I think that's going to be an

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Speaker 1: issue to absolutely what took them so long. I had

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Speaker 1: thought they might try to bring because they're specifically um

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Speaker 1: looking at a number of water bodies and things like that.

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Speaker 1: I had thought they might want to try to bring

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Speaker 1: a super fund action or something, but they don't seem

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Speaker 1: to have done that. It's under state law claims they

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Speaker 1: brought in the state court. And again, um, if they're

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Speaker 1: not dismissed, a might find obviously sympathetic juries who will

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Speaker 1: rule against Montsanto in the first instance. Chuck Montanto, Montsanto spokesman,

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Speaker 1: said that the case is experimental because it seeks to

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Speaker 1: target a product manufacturer for selling a lawful and useful

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Speaker 1: chemical for to eight decades ago. That was applied by

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Speaker 1: the US government, Washington State, local cities, et cetera. That

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Speaker 1: was to a p Is he right about that experimental? Yeah? That, Yeah,

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Speaker 1: that's going to be part of their defense. Obviously, PCBs

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Speaker 1: weren't outlawed until nine and uh, I don't know if

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Speaker 1: you can say they were necessarily approved. But there, you know,

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Speaker 1: the state suing under things like product liability defective you know,

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Speaker 1: inherently dangerous products. They're suing under negligence, they're suing under

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Speaker 1: some state uh, you know, laws that allow them to

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Speaker 1: bring suit for inherently dangerous chemicals, and so I think,

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Speaker 1: you know, there's certainly the potential that they could be

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Speaker 1: that the company could be found liable under those statutes.

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Speaker 1: But I think there's a lot of problems with that,

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Speaker 1: as we've been discussing. I mean, the question of what

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Speaker 1: they I agree with, what took them so long? The

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Speaker 1: question of how how much proof is there that when

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Speaker 1: they were actually manufacturing them they knew that it was

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Speaker 1: dangerous to humans. I mean, they have some studies and animals,

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Speaker 1: but that doesn't and necessarily mean that the uses that

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Speaker 1: were that they were being put to, uh, you know,

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Speaker 1: we're definitely dangerous to humans and stuff like that, or

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Speaker 1: that they knew or had reason to know. So it's

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Speaker 1: going to be a I think it's not gonna be

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Speaker 1: an easy case. Chuck. On the other's hand, you know,

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Speaker 1: there's there the lawsuits are really this laws in particularly

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Speaker 1: really based on the fact that PCPs is so pervasive

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Speaker 1: in the environment from their use everywhere, and given the

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Speaker 1: scope of their use and what is happened in the

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Speaker 1: environment with them, what kind of liability if this case

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Speaker 1: is allowed to go forward, could mon Santo face. Well,

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Speaker 1: it's the case does go forward. I mean, they've alleged

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Speaker 1: many water bodies and it seems to me the damage

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Speaker 1: could be in the billions of dollars here and because

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Speaker 1: you're looking at trying to deal with PCBs. You know

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Speaker 1: where if you look at what happened here in New

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Speaker 1: York State where g E had to clean up PCBs

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Speaker 1: in the Hudson which became a Federal Superfund site Hudson River. Uh,

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Speaker 1: they spent like one and a half billion dollars and

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Speaker 1: and you know, e p A said stop at the

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Speaker 1: A lot of citizens think they should do more. So

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Speaker 1: it's so that's just one water body. And if you

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Speaker 1: look at you know, if you look at what they're saying,

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Speaker 1: in the state of Washington, they've got to it looks like,

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Speaker 1: you know, over a hundred water bodies. And so I

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Speaker 1: think you could be talking about really huge numbers here

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Speaker 1: if there if they're ever found liable. Just about thirty

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Speaker 1: seconds here check. There are indications that other states may

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Speaker 1: join in this, and there are certainly cities that are

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Speaker 1: does Montsanto have the legal resources to fight this if

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Speaker 1: it becomes a lot of states, Well, I think their

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Speaker 1: first defense maybe you know that the that there, you know,

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Speaker 1: they have already created a fund to deal with these

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Speaker 1: claims under bankruptcy and to the extent that you're trying to,

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Speaker 1: you know, puncture that you can't do it. That's gonna

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Speaker 1: be the first line of defense. Now, now court may

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Speaker 1: say that doesn't apply to some of these newer cases,

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Speaker 1: or because sometimes you know, when you deal with environmental

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Speaker 1: issues in public health issues, bankruptcy doesn't always wash it clean.

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Speaker 1: But to the extent you're dealing with claims that date

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Speaker 1: back to predate the bankruptcy and stuff, they may have

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Speaker 1: the potential to do with it that way, but I

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Speaker 1: think or you might see another bankruptcy, which is what

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Speaker 1: happened in the Asbetas situation, where all these Asbeta's claims

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Speaker 1: piled up, which looked like they were going into the

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Speaker 1: billions of dollars. We'll have to stop their chuck. We'll

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Speaker 1: pick it up again another time. That's Charles Warren't share

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Speaker 1: of the environmental practice at Kramer Levin coming up, Emerging

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Speaker 1: trends in healthcare law. I'm Jim Gross with Michael Best.

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Speaker 1: This is Bloomberg