U.S. Judge Returning Bhopal Case to India : Moves to Dismiss 145 Lawsuits Against Carbide Stemming From ’84 Tragedy That Killed 2,000

A federal judge ruled Monday that lawsuits stemming from the lethal release of chemical gas in 1984 from a Union Carbide Corp. plant in Bhopal, India, should be heard in Indian courts, and he moved to dismiss billions of dollars in damage claims filed in the United States.

But U.S. District Judge John F. Keenan imposed several conditions designed to subject Union Carbide, the prime defendant in the cases, to the procedures and reach of American courts, even if the cases are tried in India.

Before dismissing the 145 suits that were filed in U.S. courts and consolidated in his courtroom, Keenan said he will require the company to agree to satisfy any judgment reached against it by the Indian courts; to submit to the American style of pretrial discovery, in which each side produces documents and testimony requested as evidence by the other, and to give up any defense based on the statute of limitations.

More Than 2,000 Killed

More than 2,000 people died after a cloud of methyl isocyanate gas, used in making pesticides, leaked from the Bhopal plant on Dec. 3, 1984.

In ruling to send the Bhopal matter back to India, Keenan granted a motion filed by Union Carbide and rejected the position of the Indian government. India had argued that its own legal system is unprepared to handle a matter of such magnitude and complexity.

But Keenan, in a 63-page order, wrote: “The Union of India is a world power in 1986, and its courts have the proven capacity to mete out fair and equal justice. To deprive the Indian judiciary of this opportunity to stand tall before the world and to pass judgment on behalf of its own people would be to revive a history of subservience and subjugation from which India has emerged.”

Keenan ruled that the preponderance of evidence, witnesses’ testimony and legal interest in the case remains in India. The burden of transporting documents and witnesses to an American courtroom thousands of miles away, he wrote, would create an insurmountable administrative problem. Even without the additional handicap, he observed, “the Bhopal litigation will take its toll on any court which sits in judgment on it.”

Lower Incomes, Lower Awards

American lawyers for thousands of individual plaintiffs had also moved to keep the cases in American courts. They reasoned that American juries would be more likely to produce multimillion-dollar judgments than juries in India, where the standard of living is much lower and annual incomes are a tiny fraction of those in the United States.

Still, the Indian government’s American attorney in the Bhopal lawsuits said his preliminary reading of Keenan’s order is positive.

Of the conditions imposed on Union Carbide, the lawyer, Michael V. Ciresi, said: “Those conditions cover most of the reasons we sought jurisdiction in the United States. We think the monkey’s on Union Carbide’s back. They have to accept the conditions.”

In a written statement, Union Carbide said it is “pleased” with Keenan’s order but did not specifically address the conditions. The company’s attorney on Bhopal litigation, Bud G. Holman, could not be reached.

Most Victims From Slums

The plant at Bhopal was owned by Union Carbide India Ltd., a 50.9%-owned subsidiary of Union Carbide. Most of those killed by the leaking gas were residents of slums surrounding the plant; 200,000 were reported injured.

Scores of American lawyers sought out destitute victims, offering to represent them in federal lawsuits against the company.

Ultimately, the Indian government passed a law declaring itself the only proper representative of the victims and retained Ciresi’s Minneapolis firm for the U.S. litigation. Nevertheless, American lawyers have continued to represent, at least nominally, individual plaintiffs in Keenan’s court.

The Indian government and the plaintiffs’ lawyers have apparently worked at cross-purposes while Keenan worked toward his ruling on the all-important question of where the cases should be heard. In March, when the plaintiffs’ lawyers reached a tentative out-of-court settlement of $350 million with Union Carbide, objections by the Indian government killed the plan.

Whether Monday’s ruling will promote or hamper an eventual settlement was the subject of some disagreement among the plaintiffs’ attorneys.

“The only course of action is to appeal,” said F. Lee Bailey, one of three attorneys Keenan had appointed to a plaintiffs’ committee. But Bailey said the cases are so complex that “we are probably unable to try the case in either country; it’s unfortunate that this case didn’t settle.”

Years of Litigation

Others suggested that the prospect of years of litigation in a foreign country might provoke Union Carbide to seek a settlement anew.

But Ciresi said Monday that India continues to consider the $350-million offer to be inadequate. “Any (court) award in India will be well in excess of $350 million,” he said.

In sending the litigation back to India, Keenan rejected plaintiffs’ arguments that procedural obstacles facing claimants there are too severe to assure them of justice.

Most of those obstacles, he wrote, have already been removed. The country’s high court fees have been waived for Bhopal claimants, he noted, and the judiciary has the ability to establish special tribunals in extraordinary cases.

‘Delays a Fact of Life’

“While delays in the Indian legal system are a fact of judicial life, there is no reason to assume that the Bhopal litigation will be treated in ordinary fashion,” he wrote.

Keenan also dismissed contentions that the cases should remain in his court because Indian judges customarily show little interest in promoting out-of-court settlements.

“This court has labored hard and long to promote settlement between the parties for over a year, to no avail,” he wrote. “It would appear that settlement, although desirable for many reasons, is unlikely regardless of the level of activism of the presiding judge.”

The Citizens Commission on Bhopal, which is composed of labor, religious, academic and environmentalist groups, estimated that suits filed against Union Carbide have a total value of $4.1 billion.