CHARLESTON —
West Virginia’s Supreme Court reduced a $382 million judgment against DuPont on Friday and said a jury must now decide whether the underlying claims of long-term toxic chemical exposure were filed in time to permit the remaining damages.
A divided court halved a $196 million portion of the verdict meant to punish the chemical giant for its handling of a former zinc plant in Spelter. But the 179-page ruling affirms the verdict by a 2007 Harrison County jury that area residents merited a 40-year medical monitoring program to screen for adverse effects from exposure.
The opinion also upholds rulings by Circuit Judge Thomas Bedell on expert evidence and allowing the case to proceed as a class-action. But it reverses his finding that the plaintiffs did not know they had grounds to sue more than two years before they filed their case.
State law would bar their lawsuit and erase what remains of the judgment if they did. Friday’s ruling leaves that question to a jury.
“We are confident that the statute of limitations issue will be resolved in favor of the plaintiffs,” said Ed Hill, one of their lawyers. “The jury system works. Our appellate system works.”
DuPont also looks forward to addressing that jury, but was disappointed that Friday’s ruling did not reverse the entire judgment, General Counsel Thomas L. Sager said in a statement.
“DuPont was denied a fair trial by numerous errors,” the statement said. “The evidence shows that there is no increased risk or need for remediation in the class area.”
The company had been involved with the property since 1899, when it bought the land for a gunpowder mill, and had operated the plant until selling it in 1950. It then took it over when then-owner T.L. Diamond closed it in 2001.
The smelter produced more than 4.4 billion pounds of zinc over 90 years, while churning out such toxins as arsenic, cadmium and lead in the process. Standing in for roughly 8,000 area residents, the 10 individual plaintiffs alleged the plant contaminated surrounding air, soil and water. The 2007 jury concluded that DuPont was liable for damages and that it had engaged in “wanton, willful, or reckless conduct.”
The Supreme Court heard arguments in the resulting appeal nearly a year ago. Taylor County Circuit Judge Alan Moats wrote Friday’s ruling, as he and Mercer County Circuit Judge Derek Swope sat in for recused justices Tom McHugh and Brent Benjamin. The remaining justices each issued separate opinions agreeing and differing with elements of the ruling.
Justice Menis Ketchum concurred with sending the timeliness question back to a jury, but dissented from the rest of the ruling. He also called for West Virginia to modify or abolish the legal standard that allows medical monitoring damage awards, and argued it was incorrectly applied in the case.
Justice Margaret Workman disagreed with the ruling’s treatment of punitive damages. So did Chief Justice Robin Davis, who also took issue with some of Ketchum’s dissent.
Friday’s decision sets nine new legal precedents, including four that address punitive damages. One of those, from which both Davis and Workman dissented, concludes that a lawsuit’s quest for medical monitoring cannot result in such a damage award.
As a result, the decision reduces the case’s punitive damages by 40 percent. The ruling also cuts those damages by another $20 million to credit DuPont for cleanup costs. The company demolished factory buildings and capped the massive, 112-acre waste pile with plastic and fresh soil while working with state and federal regulators.
Gov. Joe Manchin had taken the unusual step of urging the Supreme Court to hear the appeal. His friend-of-the-court brief argued that cases resulting in punitive damage awards merited review. The court had recently refused to consider a pair of verdicts involving such damages and totaling $664 million. The lawyers suing DuPont alleged the governor had unfairly sided with the company.
Friday’s ruling reduces the original judgment to $283 million, but Hill estimated that interest accrued since the 2007 verdicts has increased what remains of the damage award to $340 million.
