Wednesday, November 26, 2008

Bhopal Suit Reinstated Due to Procedural Error

Per U.S. Law Week, 77 U.S.L.W. 1320 (Nov. 25, 2008):

A ground water pollution case premised on the same Bhopal, India, pesticide factory explosion that prompted an earlier toxic tort suit resolved by settlement was reinstated by the U.S. Court of Appeals for the Second Circuit Nov. 3. Procedural error on the district court's part in converting a motion to dismiss into a motion for summary judgment and then dismissing the case requires reversal, the appeals court said. A motion to dismiss focuses solely on the adequacy of the pleadings, while a summary judgment motion considers sworn testimony in an effort to identify undisputed issues. Characterizing the matter as “a close case,” the appeals court here determined that “in light of the peculiarly difficult procedural history of this and related litigation,” it was error to convert the motion to dismiss without giving the parties “reasonable opportunity to present all the material that is pertinent to the motion.” The opinion addressed only procedural matters and did not discuss the water pollution at the core of the suit. Sahu v. Union Carbide Corp., 2d Cir., No. 06-5694, 11/3/08. 23 Toxics Law Reporter 984.


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