Facing potential litigation from the government on behalf of a public entity can be a daunting thing for any business owner and consultation with an attorney experienced in litigating matters against the government is always a good idea.
That is the situation currently facing three companies: an agricultural biotech firm, a pharmaceutical company and a chemical manufacturer, which are each currently facing a class action lawsuit brought by the city of Lexington on behalf of its school districts and others who have allegedly been affected by products used in construction of school buildings between the 1950s and 1970s.
The city is alleging that these companies produced and distributed a product known as polychlorinated biphenyls, more commonly known as PCBs, which was a widely-used chemical several decades ago. However, it has since been learned that it may contain a cancer-causing agent if individuals are exposed to the chemical over long periods of time.
The city says the companies had a duty to warn of the dangers of the product, and wants the companies to pay for demolition and replacement of these products within the school buildings, in some cases replacing the entire school buildings altogether.
Company representatives for the biotech firm reportedly noted that the company as it exists today never had an agreement with the city, so the “duty to warn” theories that are listed in the suit aren’t supported by state law. Further, according to claims mentioned in news reports, the school that is named in the suit was built a number of decades ago, hasn’t been well-maintained, and was actually schedule to be demolished several years ago. It’s been alleged that the school has long since outlived its intended life, and it’s questionable that the school is bringing the matter forth now, considering it is now in the process of rebuilding, with a scheduled re-opening in the spring of 2014.
City officials say they had already made plans to replace the school within the next 10 years, but when the high levels of PCB were found, the project was fast-tracked. There were requests from emergency funding from the state. PCB manufacturing was banned by Congress back in 1977 and the Environmental Protection agency banned the use of the compound two years later, except in equipment that’s entirely enclosed.
But the companies countered that a number of building codes in the state that were in place at the time of the original construction actually required PCBs to be present in certain electrical equipment, particularly in facilities like hospitals or schools, where fire risks were of serious concern. PCBs were also used a great deal in materials such as caulk and lighting ballasts.
The class action would represent all school districts in Massachusetts that have reported at least one building with airborne PCB levels that are higher than the maximum amount allowed by the Environmental Protection Agency guidelines.
This case could continue in the court system for years, providing an extreme example of the stress that can be involved when a business is embroiled in a legal battle with the government. Our firm works to minimize your burdens and move aggressively toward a favorable outcome for our clients.
The Brown Law Firm, LLC, has offices in Belmont and Boston. For a free and confidential consultation, call 617-489-0817 or contact us online.
Lexington files federal class action suit on PCBs, Oct. 3, 2012, By Brock Parker, The Boston Globe
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