The Fifth Circuit affirmed summary judgment in favor of a chemical company in a toxic tort case in which plaintiff alleged the defendant engaged in a civil conspiracy to sell a component of mustard gas. Adams v. Alcolac Inc., 974 F.3d 540, 542 (5th Cir. 2020), as revised (Sept. 25, 2020).

Plaintiffs were primarily former U.S. military personnel who alleged they were injured by Saddam Hussein’s use of mustard gas during the Gulf War. The plaintiffs sought to hold Alcolac, Inc. liable for these injuries because, they alleged, it illegally provided the government of Iraq with thiodiglycol, which is used to make ink and other products, but allegedly was then used here to create mustard gas.

After many years of prior proceedings, the remaining tort claim was for civil conspiracy.  Under applicable Texas law, a civil conspiracy requires:

(1) a combination of two or more persons; (2) the persons seek to accomplish an object or course of action; (3) the persons reach a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts are taken in pursuance of the object or course of action; and (5) damages occur as a proximate result.
First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222 (Tex. 2017)  But civil conspiracy is not an independent tort, so “the agreement itself” does not alone create a cause of action. Rather, a plaintiff must demonstrate that he has been injured by some act done pursuant to the common purpose of the conspiracy. In other words, damages proximately caused by the conspiracy itself are not enough; the plaintiff must show some tortious act committed by a co-conspirator pursuant to the conspiracy. But here, the statute that made the alleged sale illegal did not create a tort and did not provide a private right of action.
The court also affirmed rejection of plaintiffs’ statutory allegation that Alcolac had violated the Justice Against Sponsors of Terrorism Act, which provides that “No action shall be maintained … for injury or loss by reason of an act of war.” Plaintiffs had to admit that their mustard-gas injuries occurred during the Gulf War, a military conflict between the United States, its allies, and Iraq.  So they tried an end-run, arguing that Iraq’s use of mustard gas could not be an act of war because it grossly violated the basic norms and rules established by the laws of war.  The 5th Circuit concluded that this argument is far removed from the statute’s plain text, which contains no suggestion that the act-of-war exception applies only to acts of war that conform to international law. See Stutts v. De Dietrich Grp., No. 03-CV-4058, 2006 WL 1867060, at *4 (E.D.N.Y. June 30, 2006) (concluding that the act-of-war exception applied to use of chemical weapons on U.S. troops during Gulf War). Accordingly, the JASTA claim was foreclosed because the plaintiffs’ injuries occurred “by reason of an act of war.”