May 31, 2004
Key DuPont documents unsealed; As contamination trial nears, e-mail
scrutinized.
By David Hechler
Staff reporter
Four months before E.I. du Pont de Nemours & Co. faces a high-stakes
water-contamination trial, the West Virginia Supreme Court of Appeals unsealed
documents this month in which a company lawyer-even before the class action was
filed-suggested it would be hard-pressed to fight claims that it contaminated
the Ohio River with chemicals used in Teflon products.
"We are going to spend millions to defend these lawsuits and have the additional
threat of punitive damages hanging over our head," DuPont lawyer John Bowman
predicted in an e-mail to colleagues now posted on the Web at
www.thememoryhole.com. "[A]cting responsibly can undercut and reduce the
potential for punitives. Bernie and I have been unsuccessful in even engaging
the clients in any meaningful discussion of the subject." The reference was
apparently to DuPont lawyer Bernard Reilly, who was copied on the e-mail.
Bowman wrote that he had consulted lawyers from companies that defended
water-contamination claims involving the gasoline additive MTBE, and they
advised remediation rather than litigation. He was particularly concerned
because a chemical used to make Teflon, ammonium perfluorooctanoate-commonly
called C-8-and the related perfluorooctanoic acid [PFOA] degrade very slowly.
"Our story is not a good one," Bowman concluded, "we continued to increase our
emissions into the river in spite of internal committments [sic] to reduce or
eliminate the release of this chemical into the community and the environment
because of our concern about the biopersistence of this chemical."
Teflon isn't a chemical; it's a trademark. The products lumped together under
the name are best known for their nonstick quality in cookware, but a DuPont Web
site illustrates that they also include products that coat eyeglasses, lubricate
cars and bicycles, and protect walls, clothing and carpets from stains. Many are
made using C-8 and related chemicals. A DuPont executive testified in a
deposition that products made using C-8 accounted for $200 million in after-tax
profits in 2000, according to an article in the News Journal of Wilmington, Del.
Studying the issue
The U.S. Environmental Protection Agency [EPA] has found that PFOA can cause
cancer in animals and has identified it as a potential health risk in humans,
but it has not recommended action. Research suggests that more than 90% of the
population has at least a low level of PFOA in their blood. It isn't clear why,
nor is it clear that this is dangerous, the EPA has said. It is studying the
issue.
The West Virginia lawsuit was brought on behalf of 13 plaintiffs who represent a
class that could number 50,000. It claimed that DuPont and the Lubeck Public
Service District, the utility that served the plant, were negligent and breached
their duty by failing to disclose the pollution and the associated risks. They
have known about these, the complaint alleged, since the 1980s. Plaintiffs
demanded compensatory and punitive damages and medical monitoring. Leach v.
DuPont, No. 01-C-608 [Wood Co., W.Va., Cir. Ct.].
The plaintiffs' lead lawyer is Robert Bilott of Cincinnati's Taft, Stettinius &
Hollister. DuPont's outside counsel is Laurence Janssen, a partner in the Los
Angeles office of Washington's Steptoe & Johnson. [The utility, represented by
Parkersburg, W.Va., solo Richard Hayhurst, settled in April 2003 for $160,000
paid by its insurer.] The lawyers declined to comment beyond what is in the
public record since the judge said in January he didn't want the case tried in
the media.
DuPont also declined to answer questions about the case and other matters. But
in public statements, the company has said that neither C-8 nor related
chemicals are harmful. In a rebuttal to a segment aired last November on the ABC
television show 20/20, the company said it was cooperating with the EPA inquiry
and favored EPA regulation of C-8 and the other chemicals to assure consumers
that its products "are safe for human health and the environment."
DuPont also noted that the U.S. Consumer Product Safety Commission denied a
request that it consider warning labels for Teflon cookware. The proposal came
from the Environmental Working Group, a nonprofit group in Washington that has
been a critic of the company.
In the only previous lawsuit involving C-8, a West Virginia rancher claimed
pollution killed nearly 300 cows. Bilott also represented that plaintiff, who
reached a confidential settlement in 2001. Tennant v. DuPont, No. 6:99-0488
[S.D. W.Va.].
LOAD-DATE: June 7, 2004