DuPont Co. must pay a combined $50 million to a testicular cancer survivor and his wife, an Ohio jury announced Monday, setting the bar for dozens of other cases in which people are suing the company for illnesses allegedly caused by drinking contaminated water.
The jury awarded cancer survivor Travis Abbott $40 million in compensatory damages and his wife $10 million in “loss of consortium” damages. But the jury was deadlocked over the claims brought by kidney cancer survivor Angela Swartz and her husband, meaning that second family received nothing, and their case awaits a new trial.
“We’re disappointed the jury deadlocked in the Swartz case, but we’re happy they saw through all of DuPont’s excuses and found for the Abbott family,” said Jon Conlin, attorney for the plaintiffs.
Jurors didn’t find that DuPont acted with actual malice in the handling of its response to its contamination. That means the trial won’t move into another phase in which attorneys would have argued over the amount of punitive damages DuPont may have had to pay to the Abbott family.
The plaintiffs claimed they drank water tainted with the company’s fluorinated chemical known as C-8, or PFOA, part of a family of “forever chemicals” known as per- and polyfluoroalkyl substances, or PFAS.
“The verdict was a product of district court rulings that severely and improperly limited our defenses in this case,” DuPont said in a statement. “We will vigorously challenge those rulings and the verdict on appeal.”
DuPont Seeks Mistrial
This combined trial is the first since the company entered a $670.7 million settlement to end roughly 3,500 pending cases in 2017 for plaintiffs seeking damages for illnesses allegedly stemming from DuPont’s pollution. These verdicts now set the tone for roughly 50 other suits piling up in the U.S. District Court for the Southern District of Ohio. Conlin said there were another roughly 50 kidney cancer suits that will be filed soon.
While a loss for DuPont, this trial is a small piece of the overall toxic tort liability facing industry players that made or used PFAS, which are common in nonstick treatments, firefighting foam, water-proofing for clothes, and food wrappers.
Both sides found silver linings in the decision. Conlin said that the Swartz case was DuPont’s “number one pick” for trials it wanted because it believed it had a strong defense, but even in that case, the deadlocked jury didn’t find for the company.
DuPont said the jury decision to not award punitive damages “validates our position that at no time was there a conscious disregard” for people living near the company’s Parkersburg, W.Va., plant.
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.
In addition to the appeal, DuPont’s attorneys are already fighting the verdict. The company filed a motion for a mistrial Monday asking the judge to throw out the jury’s findings due to a jury dispute spilling into local headlines.
The case is: Swartz, et al. v. E. I. du Pont de Nemours & Co., S.D. Ohio, No. 2:18-cv-136, Verdict entered 2/27/20; and Abbott v. E. I. du Pont de Nemours & Co., S.D. Ohio, No. 2:17-cv-998, verdict entered 2/27/20.
—With assistance from Joshua Fineman (Bloomberg)