Thursday, September 25, 2008

Abagninin v. AMVAC Chemical Corp

Sep 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-56326. Akebo Abagninin and others who live and work in the Ivory Coast (Abagninin) [C├┤te d'Ivoire, Africa] appeal the district court’s dismissal with prejudice of their claims against manufacturers, distributors, and users of the pesticide DBCP for genocide and crimes against humanity under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. Abagninin alleges that DBCP caused male sterility and low sperm counts, which AMVAC knew. The district court granted with prejudice AMVAC’s motion for judgment on the pleadings as to the genocide claim for failure to allege that AMVAC acted with specific intent. Abagninin’s claim for crimes against humanity was subsequently dismissed for failure to allege that AMVAC’s conduct occurred within the context of a State or organizational policy. The Appeals Court affirmed the district court decision.

In part, the Appeals Court ruled on the "intent" issue, "The Second Circuit has recognized that dismissal of a genocide claim is appropriate when the complaint fails to allege facts sufficient to show specific intent [Cite: In re Agent Orange Prod. Liability Litig., 373 F. Supp. 2d 7, 115 (E.D.N.Y. 2005), aff’d, 517 F.3d 104 (2d Cir. 2008)]. . . Abagninin’s attempts to distinguish Agent Orange because the harmful effects of those chemicals were not known at the time assume, but incorrectly, that knowledge is the standard for intent. The key similarity between this case and Agent Orange is Abagninin’s failure to allege that AMVAC intended to harm him through the use of chemicals."

Access the complete opinion (
click here).