14-3087-cv
Sahu v. Union Carbide Corp.



                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
24th day of May, two thousand sixteen.

Present:
            PETER W. HALL,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges,
            ALVIN K. HELLERSTEIN,
                        District Judge.1
____________________________________________________

JAGARNATH SAHU, on behalf of themselves and all others similarly situated,
OHMWATI BAI, on behalf of themselves and all others similarly situated,
MOHAN LAL SEN, on behalf of themselves and all others similarly situated,
QAMAR SULTAN, on behalf of themselves and all others similarly situated,
MEENU RAWAT, on behalf of themselves and all others similarly situated,
MAKSOOD AHMED, on behalf of themselves and all others similarly situated,
KRISHNA BAI, on behalf of themselves and all others similarly situated,
KANTI DEVI CHAUHAN, on behalf of themselves and all others similarly
situated, RAGHUNATH VISHWAKERMA, on behalf of themselves and all
others similarly situated, HARCHARAN CHAURASIA, on behalf of themselves
and all others similarly situated, MOHAMMAD BAHADUR SHAH, on behalf of
themselves and all others similarly situated, SHASHI BHAGEL, on behalf of
themselves and all others similarly situated, KAMALA BAI SHRIVASTAV, on
behalf of themselves and all others similarly situated, HARISHANKAR TOMAR,
on behalf of themselves and all others similarly situated, SHANTI AIHRWAR,
on behalf of themselves and all others similarly situated, ASGARI BEE, on behalf
of themselves and all others similarly situated, ZAMIL KHAN, on behalf of
1
  Hon. Alvin K. Hellerstein, United States District Court for the Southern District of New York, sitting by
designation.

                                                    1
themselves and all others similarly situated,

                       Plaintiffs-Appellants,

               v.                                                           No. 14-3087-cv

UNION CARBIDE CORPORATION, MADHYA PRADESH
STATE,

                  Defendant-Appellee.
____________________________________________________

APPEARING FOR APPELLANT: RICHARD L. HERZ, Earthrights International,
                         Washington, DC (Reena Gambhir, Hausfeld LLP,
                         Washington, DC, H. Rajan Sharma, Sharma & DeYoung
                         LLP, New York, NY, and Curtis V. Trinko, LLP, New
                         York, NY, on the brief).

APPEARING FOR APPELLEE:       WILLIAM A. KROHLEY (William Charles Heck, on the
                              brief) Kelley, Drye & Warren, LLP, New York, NY.
____________________________________________________

       Appeal from a judgment of the United States District Court for the Southern District of

New York (John F. Keenan, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on July 30, 2014, is AFFIRMED.

       This case is the latest chapter in years of litigation arising from the operations of a

pesticide factory in Bhopal, India. The factory was owned and operated by Union Carbide India

Limited (“UCIL”), a corporation incorporated in India in 1934. A majority of UCIL’s stock,

during the Bhopal plant’s operations, from 1969 to 1984, was owned by Union Carbide

Corporation (“UCC”), a U.S. corporation.

       The history of the Bhopal plant and the previous chapters of this litigation have been

described in earlier decisions. See Bano v. Union Carbide Corp., 361 F. 3d 696 (2d Cir. 2004);

Sahu v. Union Carbide Corp., 528 F. App’x 96 (2d Cir. 2013) (Sahu I). Owners and occupants

of land near to the Bhopal plant, in several iterations of lawsuits, have sought relief against UCC
                                                2
for injuries resulting from hazardous contaminants attributed to the plant’s inadequate waste

management system. We have already addressed part of this evidentiary record in Sahu I, a

separate suit filed in 2004 by some of the same plaintiffs to recover for personal injuries.2 Sahu I

was dismissed by the District Court (Keenan, J.) and, after remand to allow additional discovery,

dismissed again and affirmed on appeal. We noted that even after undertaking “a discovery

expedition worthy of Vasco de Gama,” 528 F. App’x at 100 (quoting Sahu v. Union Carbide

Corp., No. 04 Civ. 8825JFK, 2012 WL 2422757, at *2 (S.D.N.Y. June 26, 2012)), “it is clear

from the undisputed facts that UCIL, and not UCC, designed and built the actual waste disposal

system,” id. at 102.

       In the present case, the plaintiffs again try to establish UCC’s liability.3       Plaintiffs

Jagarnath Sahu and several other similarly situated property-owners (collectively, “Sahu”) have

brought this separate action to recover for property damage, alleging claims sounding in

nuisance, trespass, strict liability, and negligence. Building on the record established in Sahu I,

Sahu claimed new evidence established UCC’s responsibility, and sought leave to take a


2
  The plaintiffs in these actions were absent class members in a 1999 class action brought against
UCC and ultimately dismissed. See Bano v. Union Carbide Corp., No. 99-cv-11329 (S.D.N.Y.).
The plaintiffs’ personal injury claims were barred under New York’s three year statute-of-
limitations. Bano v. Union Carbide Corp., No. 99 Civ. 11329JFK, 2003 WL 1344884, at *5
(S.D.N.Y. Mar. 18, 2003), aff’d in part, vacated in part, 361 F.3d 696 (2d Cir. 2004).
Remaining property claims were later dismissed as not viable because the lead plaintiff owned
no property. Bano v. Union Carbide Corp., No. 99 Civ. 11329(JFK), 2005 WL 2464589, at *4
(S.D.N.Y. Oct. 5, 2005), aff’d, 198 F. App’x 32 (2d Cir. 2006).
3
  As the District Court’s opinion describes in detail, the plaintiffs commenced this action while
Sahu I was before the Second Circuit on appeal. The plaintiffs, some of whom appeared in Sahu
I and some who did not, sought to toll the statute of limitations on various property damage
claims not included in the 2004 action. See Sahu v. Union Carbide Corp., No. 07 Civ.
2156(JFK), 2014 WL 3765556, at *1 (S.D.N.Y. July 30, 2014). The District Court
acknowledged that this action involves many of the same parties as Sahu I and that collateral
estoppel might apply to plaintiffs present in both. However, the District Court addressed the
claims of all plaintiffs on the merits, and we shall do the same. Id. at *3.
                                                 3
deposition of a former UCC employee, Lucas John Couvaras, to provide additional evidence to

oppose summary judgment, see Fed. R. Civ. P. 56(d), and to preserve his testimony in light of

his advanced age, see Fed. R. Civ. P. 26 and 30. The District Court ruled that the evidence was

not sufficient, denied the request for a deposition, and dismissed the lawsuit, a decision Sahu

appeals. We affirm.

        Sahu raises three arguments on appeal: that the District Court disregarded Sahu’s new

evidence, applied an erroneous legal standard under New York tort law of causation, and erred in

disallowing the preservation deposition of an elderly witness.

   I.      Summary Judgment 

        “We review de novo a district court’s grant of summary judgment after construing all

evidence, and drawing all reasonable inferences, in favor of the non-moving party.” Sotomayor

v. City of New York, 713 F.3d 163, 164 (2d Cir. 2013). A court shall grant summary judgment

only if “there is no genuine dispute as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). However, “[t]he mere existence of a

scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there

must be evidence on which the jury could reasonably find for the [non-moving party].”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). “Where it is clear that no rational

finder of fact ‘could find in favor of the nonmoving party because the evidence to support its

case is so slight,’ summary judgment should be granted.” F.D.I.C. v. Great Am. Ins. Co., 607

F.3d 288, 292 (2d Cir. 2010) (quoting Gallo v. Prudential Residential Servs., Ltd. P’ship, 22

F.3d 1219, 1224 (2d Cir. 1994)).

        A. New Evidence

        Sahu’s primary argument on appeal is that its new evidence “fills the gaps identified in

Sahu I.” Appellants’ Br. 3. Sahu presents a declaration from L.J. Couvaras, a project manager at

                                                4
UCIL, as to his ongoing employment relationship with UCC. Sahu claims that such evidence

proves the missing link in causation: that UCC, through its agent Couvaras, was directly

involved in the engineering and construction of the Bhopal plant. We agree with the District

Court that Sahu’s offer of “new evidence” does not accomplish his intended result.

       Couvaras states in his declaration that he “was a UCC employee assigned to UCIL from

1971 to the end of 1981, to manage the engineering and construction of the plant based on

proprietary design.” J.A. 3298. Couvaras’s declaration gives no specifics as to what he did, or

as to his role and responsibilities. That information is already in the extensive record. The

Definition of Services between UCC and UCIL stated that UCC’s Chemicals and Plastics

Engineering Department would provide “a project manager on loan to UCIL for the project.” Id.

at 2676. Project management was listed as UCIL’s responsibility. Thus, UCC “lent” Couvaras

to UCIL, to manage the project for, and under the supervision of, UCIL. In a 1985 affidavit,

UCIL-employee Ranjit Dutta described Couvaras’s reporting position within UCIL.          Dutta

identified Couvaras as a UCIL employee, and an employee that he had himself supervised. “As

a UCIL employee, [Couvaras] also reported to UCIL management and all of his activities on the

project were supervised and directed by UICL’s management.”4 Id. at 1997. The record also

includes copies of Annexures to UCIL’s Annual Reports of the Directors, identifying Couvaras

as a UCIL employee.

       Couvaras’s declaration is consistent with this record evidence, that his work was for

UCIL, not UCC. He reiterates the division of responsibilities described in the documents, that

UCC’s role was to furnish the process design reports, which “were prepared by UCC-Technical

Center in Charleston, West Virginia,” and that “UCIL provided all the other administration and

4
  Sahu asserts that the District Court overlooked impeachment evidence from a later transcribed
interview. But Dutta nowhere in that interview contradicted the statement that Couvaras was a
UCIL employee who reported to him. J.A. 2937.
                                               5
engineering staff to execute the project, using local contractors and material suppliers required

by the Government of India.” Id. at 3298. Nor does he dispute that his work was within UCIL’s

domain and that the “engineering and construction group formed in India to implement the

project” “was entirely UCIL employees.” Id.

       Sahu also furnishes a new declaration from plant operator T.R. Chauhan, who asserts that

Couvaras worked “[o]n behalf of UCC.” Id. at 3335. Chauhan does not describe any personal

knowledge about Couvaras’s status or responsibilities, nor substantiate this assertion. Nothing in

his biographical details suggests that Chauhan had any knowledge that Couvaras reported to, or

was supervised by, UCC, rather than UCIL. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or

declaration used to support or oppose a motion must be made on personal knowledge . . . and

show that the affiant or declarant is competent to testify on the matters stated.”). Sahu argues

that “it is credible that someone in [Chauhan’s] position would learn these facts,” but Sahu’s

supposition does not create facts. Appellants’ Br. 34. Sahu also points to the 1985 affidavit of

UCIL employee Edward Munoz, which states that the UCC Group I engineering department

“selected the Union Carbide Corporation employee who acted as the Project Manager to oversee

the design and construction of [a portion of the Bhopal] plant.” J.A. 2899. But Munoz’s

affidavit only reiterates what we already know from the record and, particularly, the Definition

of Services between UCC and UCIL, that UCC’s Chemicals and Plastics Engineering

Department would provide “a project manager on loan to UCIL for the project,” and that UCIL

was “responsible for the over-all venture.” Id. at 2676, 2675.

       Sahu’s argument does not impeach or rebut the extensive evidence of Couvaras’s role,

that he was lent by UCC to UCIL and, as project manager for UCIL, was answerable to, and

supervised by, UCIL. The District Court rightly determined that “[c]onclusory allegations”

arguing for Couvaras’s ongoing affiliation with UCC were insufficient to defeat summary

                                                6
judgment. Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003); see also Harlen Assocs. v. Inc.

Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (“[M]ere speculation and conjecture is

insufficient to preclude the granting of [a summary judgment] motion.”). “[N]o rational finder of

fact ‘could find in favor of the nonmoving party because the evidence to support its case is so

slight.’” F.D.I.C., 607 F.3d at 292 (quoting Gallo, 22 F.3d at 1224).

         Sahu also argues that declarations from two experts, Dr. Jurgen H. Exner and Dr. Ian H.

von Lindern, constitute new evidence of UCC’s involvement in the plant’s waste management

system. J.A. 3300, 3309. The District Court found that Sahu, without “evidence of actual

tortious conduct by UCC . . . seek[s] instead to lump together all of the steps” that led to the

production of certain chemicals at the Bhopal plant. Sahu, 2014 WL 3765556, at *11. We

agree.

         The experts contend that the process engineering and design, furnished by UCC, in fact

created the disposal problems at the Bhopal plant. In so doing, these experts only “blur[]” the

distinction between UCC and UCIL’s respective responsibilities. Id. These experts are not

offering new factual evidence, but rather, are offering conclusions based on the same evidence

that we addressed and found lacking in Sahu I. 528 F. App’x at 104 (“Sahu and many others

living near the Bhopal plant may well have suffered terrible and lasting injuries from a wholly

preventable disaster for which someone is responsible. After nine years of contentious litigation

and discovery . . . all that the evidence in this case demonstrates is that UCC is not that entity.”).

None of the new evidence presented here changes that conclusion.

         B. Legal Standard for Causation

         Sahu argues, based on our recent decision in In re Methyl Tertiary Butyl Ether (“MTBE”)

Products Liability Litigation, 725 F.3d 65 (2d Cir. 2013), that the District Court misinterpeted



                                                  7
the legal standard for causation and erroneously found that only the party responsible for actual

waste disposal could be subject to liability. Sahu misconstrues the District Court’s opinion.

          Quoting MTBE, the District Court correctly ruled that a defendant could be liable when

its conduct was a “substantial factor in” bringing about the injury, MTBE, 725 F.3d at 116

(quoting Schneider v. Diallo, 788 N.Y.S.2d 366, 367 (1st Dep’t 2005)), where its conduct “had

such an effect in producing the injury that reasonable people would regard it as a cause,” id.

(quoting Rojas v. City of New York, 617 N.Y.S.2d 302, 305 (1st Dep’t 1994)). The District Court

then inquired, consistent with MTBE, “whether UCC played a sufficiently direct role in causing

the hazardous wastes to seep into the ground to be held liable.” Sahu, 2014 WL 3765556, at *7

(quoting Sahu I, 528 F. App’x at 101-02); MTBE, 725 F.3d at 121 (“[T]he City offered testimony

that Exxon knew station owners would store this gasoline in underground tanks that leaked, and

introduced evidence that Exxon knew specifically that tanks in the New York City area

leaked.”).

          In MTBE, the defendant’s knowledge of a risk and “substantial[] certain[ty]” about the

ultimate injury constituted “tortious conduct” that “sufficed to demonstrate [defendant’s]

participation in a nuisance and trespass.” Sahu, 2014 WL 3765556, at *8 (citing MTBE, 725

F.3d at 120). But in contrast to the defendant in MTBE, there is no indication on this record that

UCC had knowledge that the Bhopal plant’s waste management system would leak, or that such

leaks would lead to local contamination. As the District Court’s opinion thoroughly sets forth,

no reasonable juror could find that UCC participated in the creation of the injury on any theory

of liability.

    II.         Deposition

          Sahu also argues that the District Court erred in declining to allow the deposition of

Couvaras. The District Court’s denial of a preservation deposition is reviewed for an abuse of

                                                8
discretion. Penn Mut. Life Ins. Co. v. United States, 68 F.3d 1371, 1374 (D.C. Cir. 1995). Sahu

argues that Couvaras is uniquely qualified to explain the relationship between UCC and UCIL.

But the extensive evidentiary record, accumulated over years of litigation, provides a thorough

picture of the relationship between UCC and UCIL as to the Bhopal plant. Sahu speculates that

Couvaras’s deposition will somehow alter what the ample record demonstrates. However, there

is no indication in Couvaras’s declaration that Couvaras knows of any new detail to supplement

or change the existing evidence. The District Court did not abuse its discretion in rejecting a

further deposition.

   III.      Conclusion

          The District Court found that Sahu’s offer of new evidence was insufficient to raise an

issue of material fact in opposition to UCC’s summary judgment motion. For the reasons set

forth above, we AFFIRM the judgment of the District Court.



                                                            FOR THE COURT:
                                                            Catherine O’Hagan Wolfe, Clerk




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