Source: http://www.lexology.com, September 8, 2016
By: Michael Winram and Melinda Norquay, Maddocks
The Southern District of Ohio Court in the USA has awarded $2.1M and $5.6M to two plaintiffs for exposure to perfluooctanoic acid (commonly referred to as PFOA) in drinking water. The plaintiffs claimed to have been diagnosed with a kidney tumour and testicular cancer respectively. The claims were made as part of a class action directed at DuPont commenced by 80,000 individuals.
PFOA and Perfluorooctanesulfonic acid (commonly referred to as PFOS) are emerging contaminants that are in products sold and used in Australia including in fabric protector, textiles, non-stick cookware, hydraulic fluid and fire-fighting foams. Australia’s exposure to PFOA in particular is not likely to be as significant as in the USA where the product was manufactured. However, it has been interesting to observe the progress of the class action made against DuPont.
In this article, we track how the class action was made, the agreement DuPont reached with the plaintiffs with respect to causation, and the first two jury trials.
1. Background
On 31 August 2001, a group of individuals filed a state court action in West Virginia against E.I. du Pont de Nemours and Company (DuPont) which became known as the Leach Case. The plaintiffs in the case brought a variety of claims under West Virginia common law tort actions for equitable, injunctive and declaratory relief, along with compensatory and punitive damages, as a result of alleged drinking water contamination.
In 2002, the West Virginia trial court granted the plaintiff’s motion for class certification and certified a mandatory, non-opt-out class that included approximately 80,000 individual residents of the communities served by certain public water districts and private water sources that had allegedly been contaminated with C-8 discharged from DuPont’s Washington Works Plant near Parkersburg. C-8 is also known as PFOA or perflurooctanoic acid, and once gave Teflon its non-stick quality. 3M Co. originally made the chemical and sold it to DuPont. However, when 3M phased the chemical out in 2000, DuPont started to manufacture its own.
In November 2004, the parties entered into a class-wide settlement of the Leach Case – the Leach Settlement Agreement. On February 2005, following appropriate class wide notice, objection opportunities, full opt-out opportunities, and a final fairness hearing, the Court entered a final order approving the Leach Settlement Agreement.
As part of the Agreement, the parties fashioned a unique procedure to determine whether the approximately 80,000 individual class members would be permitted to file actions against DuPont based on any of the human diseases they believed had been caused by exposure to C-8. The procedure required DuPont and the plaintiffs to jointly select three completely independent, mutually agreeable, appropriately credentialed epidemiologists as a Science Panel to study human disease among the residents exposed to C-8 by the discharge from DuPont’s Washington Works plant. DuPont paid the entire cost of the study which was more than $20 million. The Agreement provided that the results of the Science Panel’s study would be issued in either a ‘Probable Link Finding’ or a ‘No Probable Link Finding’ for each human disease the Science Panel studied. The agreement defines Probable Link Finding as:
‘Probable Link’ shall mean that based upon the weight of the available scientific evidence, it is more likely than not that there is a link between exposure to C-8 and a particular Human Disease among Class Members.
In 2011 and 2012, the Science Panel delivered Probable Link Findings for 6 human diseases including kidney cancer, testicular cancer, thyroid disease, ulcerative colitis, diagnosed high cholesterol and pregnancy induced hypertension and preeclampsia (Linked Diseases). The Panel also delivered No Probable Link Findings for rheumatoid arthritis, lupus, type 1 diabetes, Chrohn’s disease, multiple sclerosis, Parkinson’s disease, liver disease, stroke, osteoarthritis, attention deficit disorders and learning disabilities in children, chronic obstructive airways disease, common infections such as influenza, thyroid cancer, liver cancer, pancreatic cancer, breast cancer, prostate cancer, melanoma, preterm birth or low birth weight, miscarriage or stillbirth and birth defects.
Following the release of these findings, the individual class members whose claims were based on one or more of the Linked Diseases began to file cases in West Virginia and Ohio. DuPont moved the United States Judicial Panel on Multidistrict Litigation (MDL) for centralisation of these individual actions. The request was granted and on 9 April 2013, the Judicial Panel transferred the centralised action to the Southern District of Ohio, finding that the litigation ‘involves common questions of fact, and that centralization . . . in the Southern District of Ohio will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.’
Over 3,500 cases have been filed in or transferred to the Court as part of the MDL. Through a negotiated process, the parties chose, and the Court approved, five plaintiffs whose cases would serve as bellwether trials. The first bellwether plaintiff Carla Bartlett tried her case before a jury in September 2015. The second bellwether case of John Wolf was resolved prior to trial. David Freeman’s case was the third bellwether case, and the second case to go to a jury trial. A number of other cases have been settled for undisclosed amounts.
2. Causation
As the Science Panel delivered a Probable Link Finding as to the six Linked Diseases, the Leach Settlement Agreement permitted the individual class members to pursue the claims ‘for personal injury and wrongful death, including but not limited to any claims for injunctive relief and special, general and punitive and any other damages whatsoever associated with such claims…that relate to exposure to C-8 of Class Members’ and DuPont agreed not to contest general causation in those actions. DuPont retained the right to contest specific causation and to assert any other defences not barred by the Leach Settlement Agreement.
The Agreement defined general and specific causation in the following terms:
“General Causation” shall mean that it is probable that exposure to C-8 is capable of causing a particular Human Disease.
“Specific Causation” shall mean that it is probable that exposure to C-8 caused a particular Human Disease in a specific individual.
Alternatively, the Leach Settlement Agreement provided that if the Science Panel delivered a No Probable Link Finding (i.e. that it is not more likely than not there is link between exposure to C-8 and a particular human disease among class members), the individual class members are forever barred from bringing personal injury or wrongful death claims against DuPont based on injury or death allegedly resulting from those human diseases.
DuPont asserted in pre-trial motions that it should be permitted to ‘point out the nuances and the limitations of the Science Panel’s findings’. They also argued that it is the individual plaintiff’s burden to show, as part of proving specific causation, ‘at least two things: What their individual dose was one; and two, that that dose was sufficient to cause the disease at issue.’ In other words, DuPont’s position was that the Probable Link Findings may not apply to a particular plaintiff, such as those plaintiffs who were in the lowest exposure groups.
In response, the plaintiffs argued that the parties agreed contractually in the Leach Settlement Agreement that ‘any issue about the C-8 dosage and whether it’s sufficient to have caused this [Linked Disease] is off the table’. The Court agreed with the plaintiffs, concluding that DuPont could not prevent a class member from the benefit of the Science Panel’s finding by pointing out the ‘limitations’ in the objective criteria and/or protocols the Science Panel utilised to make its conclusions or by extrapolating from the Science Panel’s analysis what the Panel ‘did not find’ in its Probable Link Finding.
3. Test Cases
Both parties agreed that as part of the individual plaintiff’s cases, they must show that they are a class member and that they have one or more of the Linked Diseases. To prove class membership, a plaintiff must show that he or she, ‘for a period of at least one year’, has ‘consumed drinking water containing .05ppb or greater of C-8 attributable to releases from [DuPont’s] Washington Works’ plant from any of the ‘six specified Public Water Districts’ or any of the Covered Private Sources named in the Leach Settlement Agreement. The Court also ruled that, regardless of where a case was filed, the plaintiffs who live and were injured in West Virginia will have West Virginia law applied to their claims and the plaintiffs who live in and were injured in Ohio will be subject to Ohio law.
Carla Bartlett
The plaintiff lived most of her life a few miles across the Ohio River from the DuPont plant in Parkersburg, West Virginia. After years of drinking water that had been contaminated with C-8, Bartlett was diagnosed with a tumour on her kidney in 1997, undergoing surgery to remove the tumour and part of one of her ribs.
During the trial, her attorneys argued that DuPont actively worked to ensure people living near the plant didn’t ‘connect the dots’ about the chemical, with the company keeping sensitive information from government agencies, community organisations, and ‘disgruntled employees’. A clear timetable was developed to demonstrate that DuPont first learned of the chemical’s toxicity in the 1950s and had realised it was seeping into the groundwater by 1966. In one DuPont document, which summarised a 1984 meeting about C-8, an employee concluded that ‘we are already liable for the past 32 years of operation’. By 1989, the company had increased production despite knowing that C-8 caused testicular cancer tumours in rats and classifying the chemical as a possible carcinogen.
Bartlett’s lawyers also adduced evidence that the company could have easily disposed of its C-8 waste differently. A 1985 memo and information sheet from 3M both clearly stated that the chemical should have been either incinerated or placed in a landfill designed for hazardous waste. However, in Parkersburg, DuPont chose to pump C-8 through its smokestacks, bury it in unlined landfills and dump up to 50,000 pounds a year directly into the Ohio River.
DuPont’s lawyers argued that C-8 isn’t harmful, isn’t regulated and isn’t on the EPA’s National Primary Drinking Water Regulations list of contaminants. The company said that independent studies over the past 10 to 15 years show C-8 is present in low levels in just about everyone’s blood. However, testimony from two of DuPont’s own witnesses, who admitted to having high levels of C-8 in their own bodies proved damaging to the company’s case. An occupational health coordinator at the DuPont plant said that in 1994 C-8 was measured in his blood at a level roughly 100 times the national average.
The jury had to determine whether the chemical had caused Bartlett’s cancer and were given specific instructions on how to do so. In accordance with the Leach Settlement Agreement, the jury had to accept as fact that drinking C-8 for at least a year at the level of .05 ppb or above, as Bartlett did, can cause cancer. After less than one day of deliberation, the jury determined the case in favour of Carla Bartlett, finding DuPont liable for $1.6 million, including $500,000 for emotional distress. The jury declined to award Carla Bartlett punitive damages.
David Freeman
Mr Freeman has lived in Cutler, Ohio since 1993. The water to his residence was supplied from the Little Hocking water district, a named district in the Leach Settlement Agreement. In March 2000, when aged forty years old, Mr Freeman was diagnosed with testicular cancer, and underwent surgery to remove the tumour. After surgery, he underwent a ten year follow up protocol which involved frequent observation via x-rays, CAT scans, and tumour markers.
To meet the burden of proving his claim that C-8 caused his testicular cancer, Mr Freeman proffered the expert opinion of Dr Bahnson, who performed a differential diagnosis on Mr Freeman to conclude:
David Freeman’s exposure to C-8 in his drinking water was a substantial contributing factor in bringing about the development of his testicular cancer. Further, his cancer in the right testis now puts him at substantial risk (approximately 15% chance) for developing cancer in the left testis. Additionally, because Mr Freeman underwent (appropriately so) frequent repeated CT scanning as part of his 10 year observation protocol, his risk for developing other cancers has also increased.
DuPont attempted to exclude Dr Bahnson’s expert opinion related to specific causation arguing that he had used an unreliable methodology, speculated as to age and tumour type evidence, used improper evidence of increased risk of cancer, and improperly suggested that C-8 is generally accepted in the medical community as a cause of testicular cancer. However, the Court determined that DuPont’s criticisms of Dr Bahnson’s explanations and/or conclusions goes to the weight of the evidence, not its admissibility, and should be appropriately left to ‘vigorous cross-examination, presentation of contrary evidence, and careful instruction of the burden of proof’ rather than exclusion.
Mr Freeman was also successful in precluding DuPont from questioning his treating physician Dr Cawley regarding causation. Dr Cawley testified to holding no opinion as to specific causation and being unqualified to render any opinion on the cause of Mr Freeman’s cancer. This was accepted by the Court which also found that ‘even if Dr Cawley’s opinion was somehow relevant, its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issue, misleading of the jury, and would cause undue delay and/or needless presentation of cumulative evidence.’
The company also sought summary judgment on specific causation, alleging that Mr Freeman’s had no admissible expert testimony to support his claim that his cancer was specifically caused by his alleged exposure to C-8 from the Washington Works facility and that he had no evidence and could not prove that C-8 ‘more likely than not’ caused his cancer. On this motion the Court held that that issue ‘reflects the quintessential questions for determination by a jury. That is, the weight to be given evidence and the credibility to be accorded to any particular witness are unquestionably the province of the jury.’
Under Ohio law, punitive damages are recoverable in a tort action when compensatory damages have already been awarded and ‘the actions or omissions of the defendant demonstrate malice or aggravated or egregious fraud’. The actual malice necessary for an award of punitive damages includes a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm. The Court found that Mr Freeman had raised genuine issues of material fact as to whether DuPont’s conduct exhibited a conscious disregard for the rights and safety of the community members of the Little Hocking water district that had a great probability of causing them substantial harm. He had also presented sufficient evidence from which ‘a reasonable jury could return a verdict’ in his favour.
Following a five week trial, the jury found DuPont negligent and awarded Mr Freeman $5.1 million in compensatory damages. The jury also determined that the company had acted with actual malice, and awarded Mr Freeman $500,000 in punitive damages.
4. Future of the Litigation
Chemours Co, a recent spin-off of DuPont that took over the Teflon business will cover DuPont’s liability. Both companies have stated that they will appeal the verdicts, with a DuPont company spokesman commenting that the jury’s decision ‘was the result of trial rulings that misrepresented the findings of an independent Science Panel and misled jurors about the risks of C-8 exposure.’ Forty more suits will proceed to trial in April 2017 unless DuPont settles.
DuPont and Chemours also face testing in the Dutch city of Dordrecht, where officials are questioning whether past use of the chemical is to blame for local health problems.
The full list of orders made by the Court in the various actions to date can be accessed here.