Administrative Watch
A jury in federal court in the Southern District of Ohio recently issued a verdict in the class action litigation related to DuPont’s release of perfluorooctanoic acid and/or ammonium perfluorooctanoate (C-8). The jury awarded Kenneth Vignernon a total of $17.5 million in compensatory and punitive damages after finding that DuPont acted with actual malice in discharging C-8, and that such action caused Plaintiff’s testicular cancer.
The recent verdict is the third to be reached in the lawsuits that have been filed against DuPont due to water allegedly contaminated with C-8, chemicals used by DuPont at its Washington Works plant located in West Virginia. Following the initiation of a class action lawsuit in 2001, DuPont and potential plaintiffs entered into an agreement in which independent epidemiologists (the “Science Panel”) would analyze blood samples of individuals residing near the plant to determine whether C-8 was harmful to humans (the “Agreement”). Under the terms of the Agreement, if the studies established a causal link between exposure to C-8 and any particular disease, DuPont agreed not to contest causation in any subsequent litigation involving that disease.
Between 2004 and 2011, the Science Panel studied approximately 40,000 samples obtained pursuant to the Agreement. In December of 2011, the Science Panel released its results, which concluded there was a probable link between exposure to C-8 and various diseases, including kidney and testicular cancer.
Following the release of the Science Panel’s study results, approximately 3,500 individual lawsuits were brought against DuPont by plaintiffs diagnosed with a linked disorder. In an effort to streamline the litigation, the District Court moved forward with six test cases, two of which ultimately went to trial. In March of 2016, a jury awarded Carla Bartlett $1.6 million in damages. Approximately four months later, a jury awarded David Freeman $5.6 million in compensatory and punitive damages. DuPont appealed Carla Bartlett’s verdict to the Sixth Circuit, arguing that under the terms of the Agreement, it agreed only to refrain from contesting general causation, not causation for a specific individual. Oral arguments were held on December 9, 2016; an opinion has not yet been issued. The Southern District for Ohio is currently scheduled to try 10 more cases between May and July of 2017.
Along with facing litigation from private citizens, DuPont has entered into several consent agreements and amendments with the Environmental Protection Agency (EPA). These agreements have set out settlement terms, assessed penalties against DuPont and set limitations for the amount of C-8 that could be present in water supplies affected by the releases. On January 9, 2017, the EPA announced an amendment to a consent order which set out those limitations, lowering the action level from 0.40 parts per billion (ppb) to 0.07 ppb. This reduction is based on site-specific data and a health advisory previously issued by the EPA establishing C-8 limits that were protective of human health. Additionally, the amendment expands the geographic area around the Washington Works Plant where water supplies must be investigated for possible impacts from the releases.
Babst Calland attorneys will continue to monitor the DuPont litigation and EPA actions. If you have any questions please contact Don Bluedorn at 412-394-5450 or dbluedorn@babstcalland.com or Kathy Condo at 412-394-5453 or kcondo@babstcalland.com or any of our other environmental attorneys.
