Attorneys for Union Carbide, the Indian government and the thousands of Indian residents killed or injured in the Bhopal gas leak disaster confronted each other Friday over an issue that may govern the size of any financial settlement: whether to try lawsuits over the accident in the United States or in India.
The arguments before U.S. District Judge John F. Keenan focused on Union Carbide's motion to dismiss the 114 lawsuits brought against the company by victims in favor of hearing all claims in Indian courts, where nearly 4,000 such cases have been filed. Those cases have been stayed by an Indian judge, pending Keenan's ruling, which is not expected for several weeks.
The claims derive from the lethal leak on Dec. 3, 1984, of methyl isocyanate, a compound used in the production of pesticide, from a plant owned by a Carbide subsidiary. The gas cloud created by the unexpected mixture of water and the chemical compound spread over a neighborhood of destitute hut dwellers located about the plant's boundary, killing more than 1,700 persons and injuring hundreds of thousands more.
Most of the evidence of how the lethal gas leak occurred, almost all of the relevant witnesses and all of the victims are in India, the company argues. This would make it almost impossible to try the claims in a U.S. court, said Bud G. Holman, Carbide's attorney in the case.
The motion is opposed by American lawyers for the plaintiffs and by the Indian government, who contend that the ultimate responsibility for the disaster rests with Carbide as the American parent of the Indian subsidiary that held title to the errant industrial plant.
"Indians are saying, 'A large American multinational corporation came to our country and killed a bunch of us, and we should be permitted to go to the home of the (perpetrator) and get justice,' " said F. Lee Bailey, one of three American lawyers that Keenan selected to jointly represent the thousands of plaintiffs in his court.
The lawyers for both sides faced up to the notion that all of their legal arguments pale before the pecuniary one: The likelihood of a large settlement is far greater from a panel of U.S. jurors than from a judge in India, where standards of living are lower than in America, personal injury awards are customarily lower and juries do not hear civil damage cases.
Furthermore, Holman argued, defendants in the Indian lawsuits include not only Union Carbide but the governments of the city and state in which the disaster took place, as well as the Indian government itself and Union Carbide India Ltd., Carbide's 50.9%-owned subsidiary.
The company would also like in those cases to add co-defendants ranging from the plant's Bombay-based engineers to its local landscapers. The sole defendant in the U.S. cases is Danbury, Conn.-based Union Carbide itself.
"The sovereign (India) wants the benefit of having only one defendant, of not being a defendant themselves and of the unpredictable generosity of U.S. juries," Holman said.
"Should the plaintiffs be dismissed because they hope to obtain as large a recompense as possible?" replied Jack S. Hoffinger, another attorney on the plaintiffs' team. "What's wrong with wanting that result?"
Friday's hearing follows months of discovery, a process in which each side tried to extract evidence from the other to prove its case. The result was much inconclusive data over how much control Union Carbide exercised in the design of the plant and the behavior of its subsidiary. The company says that it participated in the initial design but that it was widely altered by Indian engineers and that the last American official had left the site in early 1982. The Indian subsidiary was operated and financed by Indians and its stock was traded on the Bombay Stock Exchange, Carbide said.
The plaintiffs responded that the plant's workers were regularly trained at Carbide's U.S. installations and that the parent made such important decisions on its own as deciding to sell the plant some time before the accident.
Still, most of the daylong hearing seemed to concern two other issues: the ability of the Indian judicial system to manage the aftermath of history's worst man-made disaster and Union Carbide's contention that sabotage may have been responsible for the tragedy.
Carbide's Holman, the first speaker, had not finished the first sentence of his opening argument before Judge Keenan zeroed in on the contention that Sikh extremists--like those who assassinated Prime Minister Indira Gandhi weeks before the Bhopal leak--tampered with the plant.
"Let me get right to that," he said. "Is there any evidence of that, or is that really in this case?"
"It isn't preposterous," Holman replied. To consider the introduction of water into the chemical compound tank an accident, he argued, one would have to believe that a worker ignored color-coded piping, failed to distinguish the characteristic noise of water flowing into a gas line and attached an obviously inappropriate fitting to the pipe.
"He would have had to be blind," Holman said. " . . . or to have made a mistake," Keenan added. After further arguments, the judge remarked: "I'm not persuaded that there's sabotage. I don't think that issue is going to be in any way a controlling one."
But he seemed more sympathetic to Carbide's argument that unearthing witnesses and documents in India, questioning them and perhaps transporting them 8,000 miles to a U.S. courtroom would create a judicial nightmare. Indian courts would have greater power to compel testimony in their own country, the company suggested.
The plaintiffs' lawyers argued that the Indian court system is so backlogged that handling the Bhopal claims would take years, if not decades, outlasting the very lifespans of the victims. "In India, there's no guarantee that these cases will be tried at all," Hoffinger said, "or in time for any verdict to be meaningful for these hapless victims."