Gov. Joe Manchin’s office acknowledged that he conferred twice with chemical giant DuPont as it planned to appeal a $196 million punitive damage award in a West Virginia pollution case.
His office also reviewed a draft friend-of-the-court brief offered by the chemical giant.
But the draft was used for reference only, said administration spokeswoman Lara Ramsburg, and the brief Manchin ultimately filed urging the state Supreme Court to hear DuPont’s appeal was his own.
“Here, the proposed draft was provided, we politely reviewed it, said ‘Thanks, but no thanks,’ and ultimately decided to go another way,” she said.
The court is in summer recess and has not yet decided whether to take the case.
The revelation about communication between the governor’s office and the chemical giant is the latest twist in a complex class-action lawsuit involving nearly 8,000 people exposed to toxic chemicals that spewed for decades from a zinc-smelting plant in Spelter.
While the case centered on medical and liability issues, the plaintiffs also argued that close ties to DuPont made environmental regulators and other state officials complicit in allowing a 112-acre waste pile tainted with arsenic, cadmium and lead to sit in the center of town until 2001.
After a five-week trial in county circuit court last fall, jurors convicted DuPont of wanton, willful and reckless conduct and ordered it to pay punitive damages to deter future misconduct. Total damages were $382 million.
Lead plaintiffs’ attorney Michael Papantonio said West Virginia has the most tangled web of ties between politicians, policymakers, regulators and the judiciary that he’s ever seen.
“This is a good-old-boy system that is killing the rights of consumers,” Papantonio said on Aug. 13.
Papantonio discovered the DuPont brief and Manchin’s meeting with company officials through a Freedom of Information Act request and said he plans to file more.
Manchin is not taking sides or trying to subvert justice, Ramsburg said. Rather, he is asking the state Supreme Court to address the legal question of how it handles punitive damage appeals: Is consideration of a written appeal alone adequate, or do all defendants deserve to argue their cases in person?
While most states grant automatic appeals, West Virginia and Virginia give their appeals courts complete discretion on whether to hear most civil cases. Ramsburg said Delaware-based DuPont requested the June 2 meeting and the governor heard the company out, as he would anyone else.
“To say we have been in collusion with someone over this brief is not correct and unfair,” Ramsburg said. “We are not taking a side. … The governor hopes that the people deserving of medical monitoring receive the medical monitoring that they need.”
But that’s not how the plaintiffs see it.
“Governor Manchin just showed us he’s more concerned with big business in West Virginia than with the health and well-being of our families and children,” said Rebecca Morlock of Meadowbrook. “Maybe Governor Manchin should come here and try to explain his actions.”
Besides punitive damages, jurors awarded $130 million for a 40-year health screening plan and $55.5 million to clean up private property.
Plaintiff Waunona Messinger Crouser, whose husband died of small-cell lung and brain cancer at age 38, has four children who grew up playing in a contaminated yard. Today, eight grandchildren play on the same, still-tainted ground in Lamberts Run.
“Just the simplest things bother me. Allergies, a runny nose. On a daily basis, it worries and bothers me,” she said. “Manchin might feel different, maybe, if his own family members were involved.”
DuPont insists it did the right thing by Spelter, working with state regulators after 2001 to demolish factory buildings and cap the waste pile with plastic and fresh soil.
Spokesman Dan Turner defended DuPont’s June meeting with Manchin and a November phone call with CEO Charles O. Holliday Jr., arguing it is entitled “to raise issues of public concern with public officials.”
“The governor made his own judgment based on the issues,” he said, “and his office wrote and filed their own brief with the West Virginia Supreme Court.”
An Associated Press review of both briefs found that nine of the 24 legal citations in the state’s brief are also in DuPont’s. Both briefs address the question of whether punitive damage awards should be automatically appealed.
Steve Roberts, director of the West Virginia Chamber of Commerce, said Manchin’s treatment of DuPont reflects an open-door policy he has with every interest group, including trial lawyers, unions, consumer groups, the AARP and the chamber.
“This is a high profile, high-dollar case, so I can imagine that feelings and tempers may be fairly high,” Roberts said. “But from our point of view, it is not unusual for this governor or other governors to participate in matters that are before the courts that have a direct impact on West Virginia. It is certainly not indicative of corruption.”
Associated Press Writer Brian Farkas contributed to this report from Charleston, W.Va.
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