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DuPont Deploys ‘Monday Morning Quarterback’ Defense in PFAS Suit

Jan. 22, 2020, 10:56 PM

In a dark courtroom, an attorney for chemical giant DuPont made a small gesture in hopes he could convince a jury his client isn’t liable for causing the cancer of two rural Ohioans: He walked to an overhead projector and put down a little white pill.

“Aspirin, the wonder drug,” Damond Mace, partner with Squire Patton Boggs, said Wednesday, as he shook the drug’s bottle and pointed to the pill’s projection.

“Now cut that little guy into one billion pieces, those tiny little specks, you wouldn’t be able to see it, how small it is,” he said. “You’re going to have to believe that DuPont knew back then that a tiny amount of C-8 would cause harm to someone 40 miles from the plant.”

In the latest high-profile toxic tort trial against DuPont, attorneys made their pitches to jurors about when DuPont knew fluorinated chemicals like C-8 discharged from its plant in West Virginia posed dangers to the public, and whether internal documents warning of toxicity may make the company liable for punitive damages. The time frame Mace referred to is between the 1960s and 2000s, and the chemical is C-8, also known as perfluorooctanoic acid, or PFOA.

E. I. du Pont de Nemours and Co. (DuPont) is accused of causing the kidney cancer of Angela Swartz and the testicular cancer of Travis Abbott. The trial comes nearly two decades after a group of individuals who had ingested contaminated water in Ohio and West Virginia filed a major class action against DuPont. That earlier case eventually led to a groundbreaking study of the health impacts of exposure to fluorinated chemicals, and a landmark $670.7 million settlement to end roughly 3,500 pending cases in 2017.

This Swartz and Abbott trial is the first since that settlement where plaintiffs are seeking damages for illnesses allegedly stemming from DuPont’s pollution. These combined cases in the U.S. District Court for the Southern District of Ohio could set the tone for roughly 50 other suits piling up in the Columbus, Ohio, federal court.

“DuPont was using an entire community for an unsuspecting science experiment,” said Jon Conlin, attorney for the plaintiffs and principal at Cory Watson, pointing to internal memos showing DuPont employees’ concerns over the chemical’s toxicity and water contamination. “DuPont has been planning for this trial since the 1980s.”

‘Soundbite Justice’

DuPont doesn’t dispute that it discharged PFOA into the water, air, and unlined landfills around its Washington Works facility in Parkersburg, W.Va. The chemical, used to manufacture Teflon, made its way into the Ohio River and into ash that fell to the ground around the plant, contaminating drinking water reserves used by thousands of people in Ohio and West Virginia.

The chemical has been linked to various diseases, including kidney and testicular cancers, which the plaintiffs suffered. Both plaintiffs had levels of the chemical in their blood that was higher than the blood level for 99.9% of the U.S. population, Conlin said.

But in order to hold DuPont liable for large punitive damages, plaintiffs will have to show by “clear and convincing” evidence that the company acted with malice—a disregard for safety above mere negligence.

During opening arguments, the sides zeroed in on what DuPont did once it discovered its discharge could be causing health impacts.

While science now shows the toxicity of the chemical and how it spread across the region, the jurors shouldn’t do “soundbite justice” and play “Monday morning quarterback,” Mace said while discussing dozens of documents over the decades in which the company and third parties said testing didn’t show danger to people from small amounts of exposure.

“DuPont never had any knowledge that there was C-8, 20, 30, 40, 50 miles away from the plant,” Mace said after showing the jury a map displaying where the company tested water samples around its facility. “You have to hear the whole story, not just sound bites.”

A Battle of Memos

But the plaintiffs’ attorneys said their case relies on expert witnesses and company documents with statements from DuPont’s own workers that shows it’s more likely the plaintiffs’ cancers stem from PFOA exposure, not lifestyle choices.

In a presentation that lasted for roughly three hours, plaintiffs’ attorneys showed snippets of internal company memos highlighting concern over the chemical’s toxicity and potential liability to the company.

“No one is going to get up on that stand and say anything other than C-8 was the cause,” Conlin said.

The trial, which is set to take place over five weeks, is a small piece of the overall toxic tort liability facing industry players that made or used per- and polyfluoroalkyl substances, or PFAS, which are common in nonstick treatment, firefighting foam, water-proofing for clothes, and food wrappers.

3M Co. and DuPont were the original companies developing and producing PFAS, dating back to the 1940s. Chemicals made with the particular PFAS 3M, DuPont, and The Chemours Co., a DuPont spinoff, have produced have been used by hundreds of companies such as Wolverine World Wide, Inc. and W. L. Gore & Associates, Inc. to make thousands of products including semiconductors, sticky notes, and shoes.

A judge in South Carolina is handling hundreds of lawsuits against 3M Co., DuPont, and other manufacturers over PFAS present in firefighting foam used across the country. States seeking cleanup funds are also filing suits: earlier this month, Michigan became the latest in a handful of states to sue chemical companies over similar contamination.

After more than six hours of opening statements, the court dismissed the jury for the evening. DuPont intends to pick back up its opening salvo on Thursday morning.

Contamination in More U.S. Cities

As the trial kicked off, new information about PFAS drinking water emerged. Tap water from more than 40 large cities tested positive for at least one PFAS chemical, though in very low amounts, according to data released Wednesday by the Environmental Working Group.

The group tested water for PFOA, the chemical at issue in the Ohio trial, as well as 29 other chemicals for which the EPA hasn’t set any health advisory level. None of the samples came back with levels of PFOA higher than the EPA’s advisory level of 70 parts per trillion.

However, some cities had higher levels of other, lesser known chemicals. A sample in Brunswick County, N.C., which is downstream from a major chemical plant, showed a combined 186 parts per trillion of 13 different PFAS compounds. A water sample in Davenport, Iowa, returned a result of 72 parts per trillion for PFBA, a chemical for which the Minnesota Department of Health has set an advisory level nearly 100,000 times higher than this.

The Environmental Working Group also found trace amounts of PFAS in tap water from Columbus and Cincinnati.

David Andrews, one of the group’s senior scientists, said regulators should take action on all PFAS as a group, even though little is known about many of them.

“The evidence is sparse on many of these other PFAS compounds, but there is enough evidence to treat them all the same,” he said.

The cases are: Swartz, et al. v. E. I. du Pont de Nemours & Co., S.D. Ohio, No. 2:18-cv-136, trial commenced 1/21/20 and Abbot v. E. I. du Pont de Nemours & Co., S.D. Ohio, No. 2:17-cv-998, trial commenced 1/21/20.

—With assistance from David Schultz.

To contact the reporter on this story: Alex Ebert in Columbus, Ohio at aebert@bloomberglaw.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

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