Gassing not foreseeable

While Adams v. Alcolac, Inc. presents an exotic dispute –civil liability for the use of mustard gas by Saddam Hussein’s regime–it turns on a fundamental issue of foreseeability under Texas tort (conspiracy) law: “The plaintiffs argue that it was foreseeable that the exported TDG [chemical] would be turned into mustard gas by some ‘nefarious character’ and that it would then be ‘used for terrorist activity.’ Perhaps so, but that misses the point. The question is not whether the plaintiffs’ battery was a foreseeable result of the alleged conspiracy but whether the battery was ‘done in pursuance of the common purpose of the conspiracy[.]’ Because there is no evidence of a common purpose beyond the initial sale and exportation of the TDG, any eventual use of mustard gas on the plaintiffs, even if foreseeable, was not in furtherance of the alleged conspiracy. The plaintiffs’ conspiracy claim thus fails for lack of an underlying tort.” No. 19-40899 (revised, Sept. 25, 2020) (citations and footnote omitted, emphasis added).