Seattle, WA - A group of public school teachers is urging the Washington State Supreme Court to review a state appellate court decision that overturned their $185 million win in a PCB tort case against Monsanto. The teachers contend that the ruling stifles plaintiffs' rights in cases stemming from the same school site and other product liability litigation.

The teachers, led by Kerry L. Erickson, argue that the three-judge panel from the Washington Court of Appeals' first division erred when it reversed the $185 million verdict. Monsanto had argued that it should have been able to assert the Evergreen State's statute of repose as a defense. In a Friday petition, the teachers urged the state's high court to revisit the ruling, focusing on the finding that their claims were potentially limited by the rule that product sellers usually can't be held liable for harm occurring after the product's 12-year "useful safe life" expires.

"If the harsh logic of the Division One decision is allowed to stand, the claims of injured Washington residents can be extinguished long before they ever arise, long before anyone could conceivably have discovered their cause, and in the case of every child plaintiff involved, long before the victim was even born," the teachers stated in their petition for review.

The three teachers, joined by one of their spouses, were the first among more than 200 plaintiffs tied to the Sky Valley Education Center to take their claims to trial. They presented evidence that they were sickened by Monsanto-made polychlorinated biphenyls (PCBs) emitted by aging fluorescent light ballasts at the school site, roughly 35 miles northeast of Seattle. The cases have so far resulted in more than $1.2 billion in losses for Pharmacia LLC, the Monsanto spin-off responsible for litigation stemming from its manufacture of PCBs from the 1930s to 1977, with more cases pending trial.

Reversing a King County Superior Court jury's $185 million award to the three teachers, the Court of Appeals panel concluded that the trial court wrongly determined that the Washington Product Liability Act's statute of repose did not apply to the case. Instead, it had looked to the product liability law of Monsanto's home state of Missouri, which does not have a similar time limit for defective product claims.

The appellate judges remanded the case to the trial court for further proceedings, noting potential factual issues regarding whether the statute of repose is fatal to the plaintiffs' case. The law includes exceptions that preserve a claimant's ability to sue beyond the 12-year time frame in certain circumstances, such as if the seller warranted the product for longer or caused the harm by misrepresenting or concealing certain information about the product.

The teachers argued in their petition that the Court of Appeals ruling conflicts with the state supreme court's 2023 ruling in Bennett v. United States, which found that the statute of repose for medical malpractice claims violated the Washington Constitution's privileges and immunities clause.

The teachers said that the appellate panel in Erickson upheld the WPLA statute of repose as constitutional without showing it passed the test outlined in Bennett, which involves serving the legislature's stated purpose of curbing insurance costs for businesses.

Among other things, the teachers protested the Court of Appeals' finding that toxic exposure testimony offered by one of the plaintiffs' experts, industrial hygienist Kevin Coghlan, was new and not generally recognized by the scientific community. The panel's two-judge majority erred by ruling out certain calculations by Coghlan, the teachers argued, even though he was simply applying basic math to existing scientific techniques.

"That decision implicates all seven other jury verdicts from seven other trials, and it parts ways with the views of six experienced Washington judges, including five trial judges who were specifically selected for their expertise in complex civil litigation," the teachers stated.

A spokesperson for Monsanto said the plaintiffs' petition "comes as no surprise, as the Erickson appeal decision undercuts their case and should result in the reversal of all the past verdicts in this litigation given the cross-cutting errors cited in the opinion."

Henry Jones of Friedman Rubin PLLP, representing the Sky Valley plaintiffs, said the teachers would file a motion with the state supreme court seeking expedited review.

"Monsanto's main defense has always been 'delay,'" Jones said. "Prompt and final resolution of the issues on appeal will save the court system and the parties an enormous amount of time and money."

According to the petition, since the Court of Appeals ruling, Monsanto has sought to compel the teachers to pay $2 million in costs. The plaintiffs, however, have moved to defer a ruling on costs pending their appeal to the state supreme court.

The three teachers are represented by Deepak Gupta, Gregory A. Beck, and Robert D. Friedman of Gupta Wessler PLLC and Richard H. Friedman, Sean J. Gamble, James A. Hertz, Henry G. Jones, and Ronald J. Park of Friedman Rubin PLLP.

Monsanto is represented by Jennifer L. Campbell, Allison K. Krashan, Farron Curry, CaroLea W. Casas, Jean-Claude André, A. Elizabeth Sternhell-Blackwell, Kenneth Lee Marshall, and Logan M. Rutherford of Bryan Cave Leighton Paisner LLP.

The case is Kerry L. Erickson et al. v. Pharmacia LLC, case number 83287-5, in the Washington Court of Appeals, Division I.