Victims Will Appeal
The Dismissal Of The Class Action Suit
Organizations of survivors
of the December '84 Union Carbide disaster in Bhopal will appeal the
recent dismissal of their class action suit in the USA within the next
20 days.Leaders of three survivors' organizations and their supporters
strongly condemned the March 20th decision of Judge Keenan of the Federal
District Court in New York calling it a "glaring instance of juridical
prejudice". They expressed hope that the Appellate Court will remedy
the "travesty of justice" caused by Judge Keenan's decision.
The class action suit seeking
damages for violations of international human rights law and environmental
contamination was filed by the three survivors' organizations and two
support groups in November 1999. Judge Keenan first dismissed the entire
case in August 2000, on grounds that the
February 1989 settlement discharged all liabilities of Union Carbide.
Plaintiffs appealed the dismissal
to the U.S. Second Circuit Court of Appeals which reversed Judge Keenan's
order and acknowledged that the damages to the health of the people
caused by soil and water contamination, as well as the claims for clean-up
and medical monitoring of 20,000 affected people, were outside the scope
of the 1989 settlement. The Second Circuit reprimanded Judge Keenan
for not properly considering these environmental claims and sent the
case back to him for reconsideration of these matters.
In his recent decision, Judge
Keenan dismissed the suit for a second time on grounds that too much
time had passed between knowledge of the injury caused by the soil and
water contamination and the filing of the lawsuit in 1999. The decision
also stated that the survivors' organizations lacked standing to bring
claims on behalf of their members, and finally, concluded that ordering
clean-up and medical monitoring would be impossible to implement in
Bhopal because of its remote location from the U.S. court.
Mr. Himanshu Rajan Sharma,
New York based attorney for the plaintiffs organizations, who also addressed
the press conference, criticized the decision on several legal grounds.
According to him the decision erroneously applied a 3-year time limitation
of New York law. "In fact, under New York law, the plaintiffs'
claims for damages as a result of environmental contamination cannot
be time-barred because the injuries are continuous or ongoing in nature"
he said. Also, according to Mr. Sharma,
because Union Carbide actively withheld its knowledge of the widespread
environmental contamination of soil and water caused by its plant in
Bhopal, the 3-year limitation does not apply. Actually, Judge Keenan's
decision recognizes this fact, but absolves Union Carbide by suggesting
that the corporation did not make false statements to the public, but
only withheld information.
On the issue of US Court's
supposed inability to enforce its judgment in a distant place such as
Bhopal, Mr. Sharma pointed out that the United States Supreme Court
has always held that a court has jurisdiction to order such relief from
any defendant that is present before it, regardless of where
the relief is implemented. In one American case, U.S. courts ordered
a defendant corporation to clean up contaminated land in Honduras. The
Second Circuit Court of Appeals, to which plaintiffs will appeal, has
also previously recognized the authority of U.S. courts to order defendants
Texaco Corporation to undertake clean-up in Ecuador.
Finally, Mr. Sharma added
that the decision was legally unsupportable in its conclusion that the
Bhopal survivors' organizations lack standing to bring claims on behalf
of their members. In class action lawsuit, it is well-established that
organizations may function as representatives of the
The organizations announced
that they will continue to raise the critical humanitarian issues of
Bhopal both in legal fora as well as in the court of international public