Processing Magazine

Plaintiffs Appeal DuPont Ruling

March 12, 2008
According to the Associated press, a group of West Virginians who won nearly $400 million in damages in a DuPont pollution case are now asking the state Supreme Court for a little more.

Lawyers for plaintiffs who live near a former zinc-smelting plant in Spelter filed an appeal recently, arguing Harrison County Circuit Judge Thomas Bedell erred in keeping 300 people out of a property cleanup plan.

While those residents are entitled to medical monitoring awarded by the jury, plaintiffs'' attorney Brian Barr said they face a continuing risk from the arsenic, cadmium and lead that contaminate their properties. Cleaning it up would cost DuPont about $5 million, he said.

Bedell ruled in September that the land owners were bound by valid and enforceable settlements they signed in 1928 with Grasselli Chemical Co., a forerunner of a DuPont chemical department.

The residents, who had sued over pollution-related damage to livestock and crops, accepted the settlements in exchange for their promises not to sue in the future.

But in the 1920s, the general public did not know the cancer risks from the toxins surrounding them, and Barr argues "there''s a public policy argument that can be made" today.

In October, jurors convicted DuPont of wanton, willful and reckless conduct in its operation of the smelter.

DuPont was ordered to pay $196.2 million in punitive damages to residents who claimed the company had for decades downplayed and lied about health threats in the air, soil and water. When combined with verdicts in other phases of the same trial, the awards totaled nearly $400 million.

The company has already asked the Supreme Court to overturn Bedell''s order that DuPont fund a $130 million medical monitoring program for some 8,500 people, arguing it''s "a grossly inflated cost projection." DuPont insists there was no scientific evidence to justify the 40-year medical monitoring plan, which includes low-dose CT scans for screening of lung cancer or other conditions.

DuPont intends to fight the plaintiffs'' latest claim as well, spokesman Anthony Farina said Monday.

Over 90 years, the Spelter plant produced more than 4 billion pounds of slab zinc and 400 million pounds of zinc dust, materials used in rustproofing products, paint pigments and battery anodes.

DuPont claims it did the right thing by the town, working with state regulators after 2001 to demolish factory buildings and cap the massive, 112-acre waste pile with plastic and fresh soil.

DuPont has been involved with the property since 1899, when it bought the land for a gunpowder mill. The company reassumed ownership from longtime operator T.L. Diamond when the zinc plant closed in 2001.