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WEST VIRGINIA SUPREME COURT UPHOLDS MULTI-MILLION DOLLAR VERDICT

The West Virginia Supreme Court of Appeals on Friday, March 26, 2010, issued its decision in the class action case of Perrine, et al. v. DuPont. The decision was the result of an appeal of the jury verdict by DuPont. Due to DuPont’s conduct in relation to the release of toxic chemicals into the Spelter community, including arsenic, lead, and cadmium, the jury found that DuPont caused properties in the class to be contaminated and exposed over 8,000 people to a significantly increased risk of injury. As a result, the jury awarded $55 million for property clean-up, $130 million for a medical monitoring program, and $196 million in punitive damages.

The West Virginia Supreme Court of Appeals affirmed the verdicts entered by the jury and upheld most of Judge Bedell’s rulings at trial. The West Virginia Supreme Court of Appeals conditionally affirmed the entire jury verdict, with the exception that the punitive damages were reduced to roughly $98 million rather than the original award of $196 million for punitive damages. The Supreme Court reduced the punitive damages awarded by resolving an issue in West Virginia law on whether punitive damages could be awarded on a claim for medical monitoring. The Supreme Court ruled that punitive damages could not be awarded in this circumstance and reduced the punitive verdict accordingly. In addition, the Supreme Court reduced the award by an additional $20 million as it decided DuPont was entitled to credit for the ~$20 million it spent cleaning up the site itself.

The Supreme Court sent the case back to Judge Bedell for another trial, the sole question to be answered by this jury is on the issue of the statute of limitations. Judge Bedell found that the statute of limitations had not run prior to the filing of the lawsuit based on his review of the evidence. The Supreme Court ruled that a jury must decide this question. Thus, there will be a mini-trial on this sole issue so that a jury can answer this question. If the verdict of the jury in this mini-trial is favorable to the Plaintiffs, then the prior jury award of $283 million (as reduced by the West Virginia Supreme Court of Appeals), plus interest, will be upheld against DuPont.

Plaintiffs appealed one issue to the West Virginia Supreme Court of Appeals. Judge Bedell applied West Virginia law and ruled that class members who owned properties that were the subject of litigation in the 1920s with the Graselli Chemical Company could not participate in the class action to have their property cleaned up by DuPont. Judge Bedell ruled the owners of these properties in the 1930s executed deeds that released Graselli and any successor company (which includes DuPont) from all claims arising from the “past, present or future” operation of the smelter plant. We appealed this ruling seeking a change in West Virginia law. West Virginia Supreme Court of Appeals did not change West Virginia law on this issue and the releases as to these properties will continue to be enforced. This will not preclude anyone from participating in the medical monitoring program.

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Documents:

3.26.10 Opinion on Appeal

3.26.10 Workman Dissent

3.26.10 Davis Dissent

3.26.10 Ketchum Dissent

Heavy Metal Contamination and Zinc Smelting in the Spelter, West Virginia Area

Case Evaluation Form

Court Orders Class Status in Spelter W.V.

(September 14, 2006) In the property damage and medical monitoring class action lawsuit of Perrine, et al. v. E.I. Dupont, et al., the West Virginia trial court has ordered that the case may proceed as a class action. Class Action certification is an important step toward bringing the Plaintiffs' contamination-related claims to trial. Plaintiffs' counsel has until October 14, 2006 to provide the Court with a geographical map of the properties included in the class and to provide other information needed by the Court to notify class members. The Order may be appealed by the Defendants, but Plaintiffs' Counsel expect litigation in the trial court to continue forward.
View full text of the Court's opinion. (PDF)

Spelter Smelter News:

DuPont Is Ordered to Pay $196.2 Million in Smelter Case
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USA Today - Oct 19, 2007
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Times-West Virginian, WV - Oct 17, 2007
Drawing on e-mails between DuPont attorneys and their friends, relatives, engineers and lobbyists, Papantonio portrayed the chemical giant as dishonest and ...
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... over renegade corporations,'' plaintiffs' lawyer Mike Papantonio said, referring to allowing juries to use state law to address environmental damage. ...
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