W. Va. Judge Upholds $196M Award against DuPont

February 27, 2008

A circuit judge in West Virginia has upheld a $196.2 million punitive damages award against DuPont in a class-action pollution case.

Harrison County Circuit Court Chief Judge Thomas A. Bedell also ordered the Wilmington, Delaware-based chemical giant on Monday to set aside nearly $130 million for a medical monitoring plan. Bedell said the plan would be operated on a pay-as-you-go basis but DuPont must put the total amount in an escrow account.

The jury in the case required DuPont to provide medical monitoring for 40 years to people who were exposed to arsenic, cadmium and lead from a former zinc-smelting plant in the small community of Spelter.

DuPont said in a prepared statement Tuesday that it was disappointed by the ruling and plans to appeal to the West Virginia Supreme Court.

“We believe there were numerous errors, both during and after trial, that deprived the company of a fair outcome in this case,” DuPont General Counsel Stacey J. Mobley said in the statement.

“The scientific evidence simply does not warrant medical monitoring. We believe the evidence … shows that there is no increased risk of disease to the class members as a result of the smelter.”

The company also finds “particularly troubling” the decision to include biennial chest CT scans in the medical monitoring program.

“CT scans are not recommended for such medical monitoring because the risks of harm, including risks of cancer due to radiation exposure, outweigh any benefits.”

Mobley also said the $130 million cost of the medical monitoring program was overestimated by “many tens of millions of dollars.”
“DuPont’s funding obligations will be based on the actual cost of the program, not plaintiffs’ unrealistic estimate,” he said.

Bedell appointed attorney Edgar C. Gentle III as administrator of the medical monitoring plan. Gentle is a managing partner in Gentle, Pickens and Turner, a law firm in Birmingham, Ala., which is the escrow agent for a breast implant global settlement, according to the firm’s Web site.

Ten residents of Spelter sued DuPont in 2004, claiming the company deliberately misled them about health risks from the pollution and delayed a site cleanup for as long as possible to maximize profits.
The lawsuit was tried last year in four phases involving property damage claims, long-term health screenings and corporate accountability. Jurors awarded the punitive damages in October in the trial’s fourth phase.

In the other phases, the jury required medical monitoring and found DuPont liable for and negligent in creating the waste site. Jurors also found DuPont had created a public and private nuisance and that its pollution trespassed onto private property.

On Monday, Bedell approved $127 million in attorneys fees and nearly $8 million in litigation costs, which will be taken from the overall award of $381 million. He rejected DuPont’s motion for a new trial.

Information from: The Exponent Telegram

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