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Potential Juror Sees ‘Dark Waters’ Trailer, Is Booted From Trial

Jan. 21, 2020, 10:45 PM

One potential juror was booted from a toxic tort trial over DuPont’s liability for two plaintiffs’ cancer partly because he saw the movie trailer for “Dark Waters,” a film that portrays one lawyer’s struggle to bring suits against DuPont for chemical contamination.

The trial centers on allegations that E. I. du Pont de Nemours and Company (DuPont) caused the kidney cancer of Angela Swartz and the testicular cancer of Travis Abbott. The trial comes roughly 18 years after a group of individuals who had ingested contaminated water in Ohio and West Virginia filed a class action against DuPont.

“Dark Waters,” a legal thriller was created in part to get the word out about DuPont’s alleged wrong-doing. It portrays Robert Bilott, a Cincinnati partner with Taft Stettinius & Hollister LLP who is one of the plaintiff attorneys leading the multidistrict litigation against the DuPont. Bilott struggled for years to bring light to the issue of per- and polyfluoroalkyl substances (PFAS) contamination. He is played by Mark Ruffalo in the film.

DuPont’s and the plaintiffs’ attorneys argued Tuesday over whether a couple potential jurors should be dismissed due to connections with the movie. Southern District of Ohio Judge Edmund A. Sargus Jr. declined to dismiss a juror who mentioned she had heard of the movie because the potential juror didn’t say whether she had seen it and had told the court she could be fair.

Finding eight jurors and an alternate took an entire day of questioning jurors who had already been winnowed down as a result of questionnaire responses. Opening arguments are expected to begin Wednesday.

Potential Difficulty With Film

In an October pre-trial meeting, Sargus mentioned the potential difficulty the film may create for impaneling fair-minded fact-finders and said that he would try to get 60 or more jurors into the court for questioning out of concern the movie might eliminate many.

His prediction was somewhat right, as attorneys for the plaintiffs and DuPont questioned dozens of potential jurors about possible implicit bias against big companies, concerns over coverups, worries about failed regulatory oversight, and concerns over an increase in cancer prevalence across society.

Time after time potential jurors in the room, ranging from a handful to more than half of the 60, raised their hands to show their concerns for these issues. Addressing this, Pat Long, DuPont’s attorney and a partner in Squire Patton Boggs, said he admits his client isn’t perfect.

“I think DuPont understands that there are some things it could have done different, but whether that makes you liable in a court of law is a different issue,” he said to the potential jurors.

Shades of Russell Crowe

While only eight people are required for a civil jury in Ohio, the court decided to send out questionnaires to 350 potential jurors.

In the pre-trial conference, Sargus said that the reason for this high number was partly the time commitment, as well as issues of bias because “we have people in the water districts, we have people who have seen the movie trailer,” which he later said could be “confounding influences.”

Jury selection always includes questioning whether citizens appearing for duty can be fair fact-finders. Dismissing jurors for potential biases, such as relation to a litigant or a deeply held belief that destroys the ability to be impartial, is fairly common.

But films aren’t often at issue. One of perhaps the most recent was 1999’s “The Insider,” in which Russell Crowe played a former tobacco industry employee whose revelations helped lead to the more than $200 billion tobacco settlement. A Miami judge overseeing a suit against a large tobacco firm while the movie was getting Oscar buzz had to direct jurors not to see the film.

In the pre-trial conference in the PFAS case, plaintiffs’ attorney Jon C. Colin suggested the court give an instruction to the jurors on the film, and Sargus said he may poll the jury daily to see whether a juror got curious and watched “Dark Waters.”

Sargus warned the jurors Tuesday to not do any outside research, but didn’t mention “Dark Waters” by name.

“It’s really important that this can only be decided on the things you hear in this court room,” he said.

This Swartz and Abbott trial is the first to go to a jury since DuPont settled roughly 3,500 other cases for $670.7 million in 2017. That means the case could set the tone for roughly 50 other suits piling up in the Columbus, Ohio, federal court.

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 Abbott v. E. I. du Pont de Nemours & Co., S.D. Ohio, No. 2:17-cv-998, trial commenced 1/21/20.

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; Renee Schoof at rschoof@bloombergenvironment.com

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