CHARLESTON, W.Va. - Harrison County jurors ruled against DuPont in a case that argued the company illegally polluted the community with lead, zinc, cadmium and arsenic from the smelter, and then tried to mislead the public and regulators about the extent of contamination.
CHARLESTON, W.Va. - Lawyers for DuPont Co. on Wednesday urged the state Supreme Court to hear an appeal of a nearly $400 million jury decision that found the company illegally polluted a Harrison County community and then tried to cover up the damage.
David Thomas, a lawyer for DuPont, told justices that the company was being punished despite having operated the Spelter zinc smelter within industry standards and then cooperated with state and federal agencies to clean up the site.
"This is a huge punitive damages award by anybody's definition," Thomas said. "This is precisely the kind of case that warrants your review."
Harrison County jurors ruled against DuPont in a case that argued the company illegally polluted the community with lead, zinc, cadmium and arsenic from the smelter, and then tried to mislead the public and regulators about the extent of contamination. The award included a $55 million cleanup, a $130 million medical monitoring program, and $196 million in punitive damages. Wilmington, Del.-based DuPont reported earnings of nearly $3 billion last year.
DuPont has filed two appeals. One seeks a new trial, while the other challenges a circuit court ruling that DuPont should cover all potential liability for another of the site's former owners, T.L. Diamond. Nearly 200 area property owners have also appealed. They allege that company was wrongly left out of the lawsuit by Harrison County Circuit Judge Thomas A. Bedell.
The case has drawn the attention of Gov. Joe Manchin, who asked the court to hear DuPont's appeal, and the scrutiny of The New York Times, which questioned Manchin's involvement in the matter.
Manchin filed a friend-of-the-court brief on DuPont's behalf, arguing that the Supreme Court should always agree to a full appeal for cases where punitive damages were awarded to punish alleged wrongdoing.
But Justice Robin Davis said the state Constitution specifically tells the court to take in for full appeals only those cases where justices see clear mistakes by trial courts.
Justice Larry Starcher agreed with Davis, but said he believes the court on its on volition should always take in major punitive damages cases.
CHARLESTON, W.Va. - Lawyers for DuPont Co. on Wednesday urged the state Supreme Court to hear an appeal of a nearly $400 million jury decision that found the company illegally polluted a Harrison County community and then tried to cover up the damage.
David Thomas, a lawyer for DuPont, told justices that the company was being punished despite having operated the Spelter zinc smelter within industry standards and then cooperated with state and federal agencies to clean up the site.
"This is a huge punitive damages award by anybody's definition," Thomas said. "This is precisely the kind of case that warrants your review."
Harrison County jurors ruled against DuPont in a case that argued the company illegally polluted the community with lead, zinc, cadmium and arsenic from the smelter, and then tried to mislead the public and regulators about the extent of contamination. The award included a $55 million cleanup, a $130 million medical monitoring program, and $196 million in punitive damages. Wilmington, Del.-based DuPont reported earnings of nearly $3 billion last year.
DuPont has filed two appeals. One seeks a new trial, while the other challenges a circuit court ruling that DuPont should cover all potential liability for another of the site's former owners, T.L. Diamond. Nearly 200 area property owners have also appealed. They allege that company was wrongly left out of the lawsuit by Harrison County Circuit Judge Thomas A. Bedell.
The case has drawn the attention of Gov. Joe Manchin, who asked the court to hear DuPont's appeal, and the scrutiny of The New York Times, which questioned Manchin's involvement in the matter.
Manchin filed a friend-of-the-court brief on DuPont's behalf, arguing that the Supreme Court should always agree to a full appeal for cases where punitive damages were awarded to punish alleged wrongdoing.
But Justice Robin Davis said the state Constitution specifically tells the court to take in for full appeals only those cases where justices see clear mistakes by trial courts.
Justice Larry Starcher agreed with Davis, but said he believes the court on its on volition should always take in major punitive damages cases.
"I think anything of this magnitude needs another look," Starcher said. "I think we made a mistake not taking in the Wheeling-Pittsburgh Steel case. I think we made a mistake by not taking in the oil and gas case from my home county of Roane County."
Thomas warned justices that the Spelter case could force other companies to hesitate or refuse to take part in cleaning up other contaminated sites around West Virginia.
"Our state has a lot of industrial sites that are going to need remediation in the future," Thomas said. "What's the next person going to do when there's a site to be remediated and DEP or EPA asks them to come back? They're going to fight them every step of the way."
Wednesday's hearing did not include a presentation from lawyers for Spelter residents or landowners.
But in a written response, the plaintiffs argued that DuPont was wrongly "focusing on dollar amounts of the jury awards and scare tactics," to hide "weeks of testimony and hundreds of exhibits that document dangerous levels of toxins in the class area justifying remediation and medical monitoring.
"A jury determined that class members were entitled to property remediation as well as medical monitoring," wrote Ed Hill, a Charleston lawyer representing the residents in appeal actions. "That same jury determined that DuPont's conduct was so egregious that it should be punished and that same jury ordered an award that was reasonable and justified. The jury's verdict should remain intact."
The court did not immediately announce whether it would hear any of the three appeals in the case.
Justice Brent Benjamin recused himself from the cases, and Mercer Circuit Judge Derek Swope took his place. Senior Status Justice Thomas McHugh, who is temporarily replacing Justice Joseph Albright, also recused himself. Taylor Circuit Judge Alan Moats took McHugh's place.
Reach Ken Ward Jr. at kw...@wvgazette.com or 348-1702.
Post a comment