In October, a jury found Bayer liable for exposing students and faculty at the Sky Valley Educational Center in Monroe, Washington to polychlorinated biphenyls (PCBs). PCB is a banned, synthetic chemical linked to some cancers and other illnesses. Bayer intends to challenge the verdict on appeal.
What Happened in the PCB Exposure Case?
The Sky Valley Education Center, an alternative public school, opened in 1998. In 2011, the education center moved from its original location to an aging campus. Within three years of moving to the facility, school district records showed reports of fixtures smoking and catching on fire. Records also indicated that the failing fluorescent lights were leaking a yellowish oil. Additionally, teachers began to complain that the students and faculty were suffering from headaches, inflamed rashes on their limbs, blisters in the mouth, cognitive problems, and skin cysts. In one case, there was a complaint of accelerated puberty. Based on the reported symptoms, one teacher began to raise suspicions about PCBs in the facility. In April 2014, the Sky Valley principal reassured staff that the district had the issue under control. Two weeks after this initial report, the district implemented its first of many inspections conducted over the next seven years.
A 2014 inspection revealed high levels of carbon dioxide, mold, poor air ventilation, and elevated concentrations of PCBs. The inspection also revealed that PCBs were present in the lights and caulking throughout the facility. Based on the inspection findings, the school district removed 67 light fixtures suspected of containing PCBs. The district also cleaned more than 100 other light fixtures and removed carpeting from classrooms. In late 2015, district officials notified parents that they cleaned the facility in accordance with the Environmental Protection Agency (EPA) guidelines.
EPA Steps In
Despite assurances to families from the district and school officials that the education center was clean and safe, in 2016, the EPA became directly involved in the cleanup efforts at Sky Valley Education Center due to the district’s inadequate response. The EPA inspected the education center and found PCBs in several light fixtures. On April 21, 2016, the EPA reported its findings to the school district and recommended additional cleanup steps.
Six weeks after its recommendation, the EPA returned to the education center. The agency found that PCB levels had risen to its highest concentrations after the cleanup. In 2017, district officials certified to the EPA that they removed all PCB-containing light fixtures. However, in October 2019, federal inspectors found PCBs in multiple light fixtures, air filters, carpets, and caulk in the walls. Inspections later that year and in the fall of 2020 revealed the same concerning findings. In 2021, school district officials submitted a plan to the EPA to address the concerns. The EPA determined that the district plan did not fully meet the agency’s expectations.
Who’s Liable for the PCB Exposure?
More than 200 teachers, parents, and students asserted that they were harmed due to exposure to PCBs at the school. Twenty-two lawsuits are pending against the manufacturer of the PCB-laced products, Monsanto, which Bayer Pharmaceuticals acquired in 2018. The school district avoided liability due to a gap in Washington state law that does not require schools to comply with the recommendations of health inspections and does not require school districts to notify parents, students, or staff of the results of health inspections.
The plaintiffs alleged that their illnesses, which included loss of cognitive function, accelerated puberty, early-stage uterine cancer, eyesight problems, and other neurological injuries, were due to exposure to PCBs.
In August 2022, the fifth trial for Bayer related to PCBs commenced in King County Superior County. Richard Friedman and Henry Jones of the Washington-based firm Friedman Rubin represented the plaintiffs, along with Nicholas and Courtney Rowley. Kristen Rodriguez, Mordecai Boone, and Jack Vales of Dentons along with Steve Fogg of the Seattle-based firm Corr Cronin represented the defendants.
Thirteen plaintiffs alleged that the manufacturer of the light fixtures and building caulk used throughout the Sky Valley facility directly and proximately caused their injuries. Attorneys for the plaintiffs argued that the exposure to PCBs caused the plaintiffs to suffer a range of neurological injuries. The plaintiffs’ counsel also asserted that some students could face a lifetime of cognitive deficits because of the damage they allegedly sustained.
The defendants argued that while PCBs were present at Sky Valley Education Center, they were not present in sufficient amounts to cause the injuries the plaintiffs allegedly sustained. The defendants further blamed the school district for its failure to replace the outdated light fixtures in a timely manner.
Despite the defendants’ contentions, the jury awarded the plaintiffs $55 million in compensatory damages and $220 million in punitive damages. The state of Washington does not generally allow punitive damages in this type of case. However, the plaintiffs’ attorneys argued that the laws in Missouri, where the defendants are headquartered, applied to this case, including Missouri’s laws on damages.
The Impending Appeal
Predictably, Bayer announced its plans to challenge the jury’s verdict awarding plaintiffs $275 million. According to the defendants, the preponderance of the evidence does not support the conclusions that plaintiffs were exposed to unsafe levels of PCBs at the Sky Valley Education Center.
More specifically, a spokesperson for the defendants stated that the “undisputed evidence” showed the injuries claimed by the plaintiffs could not be definitively linked to PCB exposure. The spokesperson went on to add that “the air and other tests in evidence reflected either no or extremely low levels of PCBs in this school, and there was no physical evidence introduced at trial showing exposure to PCBs, such as blood testing results. Indeed, the evidence introduced at trial demonstrated the plaintiffs have not experienced neuro-cognitive injuries and are leading productive, normal lives, while other acute symptoms were raised in the trial, many if not all these symptoms were consistent with those caused by the poor indoor air quality and building condition of the Sky Valley school buildings.” The defendants also pointed to the failures on the part of Monroe School District.
What’s Next in the PCB Exposure Litigation?
More than 200 parents and teachers have sued Bayer. They claim that they suffered a variety of neurological injuries from exposure to PCBs at Sky Valley Education Center. At least 17 other lawsuits against Bayer involving alleged PCB-related injuries at the Sky Valley facility are still pending. Despite the jury verdicts, pending litigation, and involvement of the EPA, the Sky Valley Education Center remains open.