Source: http://www.delawareonline.com, July 9, 2015
By: Jeff Mordock
An Ohio federal judge dealt a blow to DuPont and the fledgling Chemours Co. less than a week after the companies separated.

Plaintiffs in a class-action lawsuit against DuPont will not be required to prove their individual level of exposure to a chemical linked to illnesses, the judge ruled. Although DuPont is the defendant in the case, Chemours will be required to indemnify its former parent if an Ohio jury finds the company liable for exposure.

DuPont sought to require plaintiffs in the lawsuit, In Re: E.I. DuPont De Nemours and Co. C-8 Personal Injury Litigation, to disclose their amount of exposure to C-8, a chemical linked to kidney disease, testicular cancer, thyroid disease and colitis. Two trials in the case are scheduled for the fall.

C-8, also known as ammonium perfluorooctanoate, or PFOA, was once used in Teflon, a signature DuPont product. Chemours has since taken over the production of Teflon after its July 1 spinoff.

Judge Edmund A. Sargus of the U.S. District Court for the District of Ohio said a settlement reached in a related West Virginia case, Leach, et. al. v. E.I. DuPont, barred DuPont from challenging the Ohio plaintiff’s exposure levels.

“The plaintiffs maintain, [exposure] is irrelevant to the issue at hand because DuPont’s position is strictly prohibited by the Leach settlement agreement,” Sargus wrote in the opinion.

Under the Leach settlement, DuPont and the plaintiffs mutually created a panel of scientific experts to study whether there was a connection between C-8 exposure and disease among the West Virginia residents.

DuPont argued some members of the Leach lawsuit were exposed to widely different amounts of C-8 and an analysis is necessary to determine if the Ohio plaintiffs’ exposure levels were statistically significant.

Sargus disagreed, ruling DuPont’s position precluded it from receiving the benefit of the science panel’s probable link findings between C-8 and six health issues. The Leach settlement is applicable in the Ohio case because some members of that class-action lawsuit were permitted to file additional claims against DuPont.

However, Sargus did rule that DuPont can introduce dosage levels as evidence during the trials, scheduled to occur in September and November.

“The plaintiffs respond that they have never taken the position ‘that DuPont cannot even refer to the words or concepts of dose or exposure for any reason,’ and DuPont cites no evidence to the contrary,” he said. “Thus, it appears to the court that there is currently no dispute as to this issue.”

A Chemours spokeswoman did not immediately respond to requests for comment, but Dan Turner of DuPont said exposure to C-8 is necessary issue to be raised at the trial.

“We believe the amount of exposure to PFOA is an important factor for the jury to consider,” Turner said.

Jean Eggen, a professor of toxic torts and civil procedure at Widener University Delaware Law School, said Sargus’ ruling prevented DuPont from avoiding a trial.

“DuPont was hoping it didn’t have to go through the length and expense of having to defend the lawsuit at a trial,” she said. “When a case goes before a jury, all bets are off.”

Sargus’ decision highlights concerns by some Wall Street analysts regarding Chemours and the environmental liabilities. DuPont has already spent $295 million on environmental cleanup and legal fees, but those liabilities have since been transferred to Chemours. Before the separation, DuPont estimated Chemours’ environmental litigation could exceed $1 billion.