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PFAS Plaintiffs Score Partial Win Over DuPont in Ohio Litigation

Nov. 26, 2019, 5:25 PM

DuPont can’t relitigate a set of claims from Ohio and West Virginia residents who say PFAS from a manufacturing facility contaminated their water, and caused cancer and other diseases.

The U.S. District Court for the Southern District of Ohio sided with plaintiffs on several arguments in the sprawling multidistrict litigation that traces its roots back nearly 20 years.

At issue is E.I. du Pont de Nemours & Co.'s Washington Works manufacturing facility along the Ohio River. DuPont has acknowledged that the site—now run by spinoff The Chemours Co.—discharged perfluorooctanoic acid, or PFOA, into the water, air, and unlined landfills.

Judge Edmund A. Sargus Jr. granted the residents’ request to block DuPont from defending against claims that were decided in previous trials, including arguments that the company’s release of PFOA amounted to negligence.

“DuPont has had its day in court on these issues,” Sargus wrote in the Nov. 25 order.

The individuals still have to support their specific claims by proving they were exposed to PFOA-contaminated water at a particular time, for an extended period, and in a particular area.

‘Reviewing Our Options’

“We are disappointed in the ruling and are reviewing our options as this matter proceeds,” a DuPont spokesman said in a Nov. 26 statement. Company lawyers previously argued that the plaintiffs’ request would deprive the company of its “fundamental right to defend itself.”

Lawyers for the plaintiffs didn’t respond to requests for comment.

PFOA is a type of per- and polyfluoroalkyl substance (PFAS) that was commonly used to make Teflon and other products.

PFAS are facing increased scrutiny in recent years in Congress, state governments, and even Hollywood. The multidistrict litigation in Ohio is part of a range of PFAS-related lawsuits filed across the country by local governments, water districts, states, farmers, and others.

Long Legal Path

The Ohio litigation builds upon a landmark class-action settlement in 2004 that established a court-approved scientific panel to determine what types of ailments are likely linked to PFOA exposure.

The panel found a “probable link” to kidney cancer, testicular cancer, thyroid disease, ulcerative colitis, diagnosed high cholesterol, and pregnancy-induced hypertension and preeclampsia. The cases now pending in Ohio include personal injury claims from alleged members of the original class action who have those diseases.

After a series of jury verdicts for plaintiffs and an abandoned appeal, DuPont settled more than 3,000 cases in 2017. Dozens of similar lawsuits have cropped up since then, with the first set for trial in January.

In his Nov. 25 order, Sargus rejected DuPont’s claims that the court had misinterpreted the 2004 class-action settlement, and that the court should have applied Ohio’s tort reform act, which caps the amount of some types of damages plaintiffs can receive.

Sargus also aired apparent frustration about DuPont’s demands on the court, noting that he has been handling the litigation in a “just and efficient manner,” as required.

“The Court owes the same to the other cases before it,” he wrote, pointing to the rest of his caseload, which includes a “major MS-13 gang case” and a product liability dispute that includes more than 4,500 cases.

The DuPont case is In re E.I. du Pont de Nemours & Co. C-8 Pers. Injury Litig., S.D. Ohio, No. 2:13-md-02433, 11/25/19.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.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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