DuPont Found Liable in First of 3,500 Toxic-Water Lawsuits
Denise Trowbridge and Tiffany Kary
October 7, 2015 — 3:55 PM EDT Updated on October 7, 2015 — 6:09 PM EDT
Ohio jury says woman with cancer should get $1.6 million
Federal trial was over handling of ingredient for Teflon
DuPont Co. was found liable for a woman’s kidney cancer in the first of 3,500 lawsuits over a toxic Teflon ingredient found in Ohio and West Virginia water, but spinoff Chemours Co. will have to bear the cost.
A jury in Columbus, Ohio, returned its verdict Wednesday after less than two full days of of deliberation, finding DuPont responsible for negligence and infliction of emotional distress, and awarding $1.6 million in damages.
The federal jury found DuPont didn’t act with actual malice in the way it handled C-8. The toxic chemical was used to make Teflon at the company’s plant in Parkersburg, West Virginia, and got into the drinking water of plaintiff Carla Marie Bartlett, 59.
Bartlett’s case was the first to go to trial among 3,500 similar suits from people who claim they got sick or had a family member die because of C-8 in public water or private wells in Ohio and West Virginia.
“This case sets the tone for DuPont and Chemours in this lengthy legal battle,” Tom Claps, a litigation analyst at Susquehanna Financial Group LLP, said in a research note Wednesday. Claps said the companies “dodged a major bullet” as no punitive damages were awarded and predicted the case will end in a settlement. He said that while this lawsuit is a blueprint, juries will consider each case on its own merits.
Phased Out
C-8, or perfluorooctanoic acid -- also known as PFOA -- is a soap-like substance that once gave Teflon its nonstick quality. DuPont has phased out the use of the chemical, reformulating products that go into fabrics, small appliances and components used in food processing.
Bartlett claimed that Wilmington, Delaware-based DuPont knew the chemical was toxic and hid that information from the public and regulators. Her lawyers cited internal tests, including one in 1981 that showed a high level of birth defects among children of female workers at the Parkersburg plant. DuPont failed to report that and other data about the chemical to the U.S. Environmental Protection Agency, resulting in a $16.5 million penalty in 2005.
“This is not a run-of-the-mill case. This was allegedly a systematic behavior,” said Carl Tobias, a professor of law at the University of Richmond in Virginia. “It doesn’t sound like an accident. It sounds worse than an accident,” said Tobias, whose specialties include products liability.
“DuPont acted reasonably and responsibly at each stage in the long history of C-8, placing a high priority on the safety of workers and community members,” Janet Smith, a company spokeswoman, said in a statement after the verdict.
Appeal Planned
Chemours will continue to fight the claims on appeal, Smith said. DuPont will also appeal, according to company spokesman Gregg Schmidt.
“DuPont does not believe that PFOA contributed to the plaintiff’s past health problems so the company disagrees with the jury’s decision regarding compensatory damages,” he said in a statement.
Bartlett’s lawyers argued that DuPont knew the chemical was getting into drinking water as early as 1984, when the company told employees living near the plant to secretly collect tap water from their homes and that water was found to contain the chemical.
“They made the Ohio River their personal toxic dumping ground so they could make more money on Teflon,” Bartlett’s lawyer, Mike Papantonio, told the jury in closing arguments before a packed courtroom. He said if the company had spent extra money and incinerated the chemical as 3M Co. had told them to, the water wouldn’t have been contaminated.
3M made C-8 before phasing it out in 2000. At that point DuPont began making its own.
Papantonio told the jury that the evidence presented at trial showed DuPont knew the dangers all along, and kept hiding them, even instructing employees in 1992 not to donate their blood because it was infected.
Not Regulated
In its defense, DuPont lawyer Damond Mace said C-8 isn’t harmful, isn’t regulated and isn’t on the EPA’s National Primary Drinking Water Regulations list of contaminants. 3M, which had been using the chemical for more than 30 years by the 1970s, also said there were no adverse health effects, Mace said.
“There were no laws restricting the use of it,” Mace told the jury. “It could be legally washed down the drain, like the dish soap we use at home and wash down the drain every day.”
DuPont took precautions and was proactive, however, because 3M had told them C-8 was persistent in blood. The company set an acceptable concentration of 50 parts per billion in drinking water when other groups deemed 500 parts per billion acceptable, the lawyer said.
DuPont said independent studies over the past 10 to 15 years show C-8 is present in low levels in just about everyone’s blood.
The outcome of the first case is seen as significant, although companies usually go through a handful of trials before deciding whether to start negotiating settlements. The next trial is set for Dec. 1, according to Chemours.
Any damages from the lawsuits will be borne by Chemours, which was spun off in July. It has carried on the Teflon business and agreed to take on many of DuPont’s legal obligations.
The case is In re Du Pont de Nemours and Company C-8 Personal Injury Litigation, 13-md-2433, U.S. District Court, Southern District of Ohio (Columbus).