West Virginia Record

Sunday, February 23, 2020

C8 MDL cases flood federal courts

By Chris Dickerson | Nov 26, 2014

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CHARLESTON – Thousands of lawsuits related to ongoing litigation against DuPont by Mid-Ohio Valley residents who were exposed to C8 in drinking water recently have flooded federal courts.

More than 2,400 have been filed so far, according to Charleston attorney Harry Deitzler, who has worked on the C8 litigation since it began in 2001. And he said he expects a few hundred more could be filed by the end of January, which is a key date regarding a statute of limitations in the matter.

January marks two years since a science panel returned its findings regarding the health effects of C8 found in the drinking water of six public water supplies in the Mid-Ohio Valley around Parkersburg.

DuPont used C8 (PFOA) at its Washington Works plant located along the Ohio River in Wood County, and C8 released from that plant eventually contaminated numerous private drinking water wells on both the Ohio and West Virginia sides of the river and six public drinking water supplies serving tens of thousands of area residents on both sides of the river.

That led to a class action being filed against DuPont in 2001, which generated the 2005 settlement.  Following the 2005 settlement and a 2006 release from a United States Environmental Protection Agency Science Advisory Board report recommending that C8 (PFOA) be characterized as a “likely” carcinogen, DuPont agreed to phase-out its use of C8 (PFOA) nationwide and, by the end of 2013, had notified the EPA that it had completed that phase-out.

Deitzler said the legal filing process in this case is complicated.

He said he and his team are serving DuPont at a rate of 50 cases per week. Those are cases already filed in Wood Circuit Court. He said there have been more than 2,400 cases filed there, but they limit it to 50 per week to make processing more manageable at many levels.

The first trials are not scheduled until September 2015, so Deitzler said the prolonged process will not affect any cases. He said they are more than halfway done with serving the lawsuits.

“All will be served and processed long before any court deadlines arise,” said Deitzler, who is a partner at Hill, Peterson, Carper, Bee & Deitzler. “Also, there would be no advantage to any client if his/her case is served sooner. We will not be permitted to move forward with substantive court proceedings in any of the cases until the Multi-District Litigation (MDL) proceedings are completed ... in Columbus.”

But, he said serving the cases is only the first step.

“After service, DuPont removes (the cases to federal court),” Deitzler said. “Then, the court transfers the cases from the Southern District of West Virginia to the Southern District of Ohio.

“Then, or sooner if it wishes, DuPont answers. After being served with DuPont’s answer, we must submit a Plaintiff Fact Sheet. Subsequent to that, DuPont must notify us of any deficiencies.

“Following that, we must do our best to correct deficiencies of which DuPont attorneys complain. If DuPont perceives our corrections to be insufficient, they must request a ‘meet and confer.’ If we cannot resolve through ‘meet and confer,’ the disagreements are submitted to mediation. If not resolved through mediation, the questions will be presented to the court for final resolution.”

All of these lawsuits eventually will be part of a multidistrict litigation assigned to U.S. District Judge Edmund A. Sargus Jr. and Magistrate Judge Elizabeth A. Preston Deavers in Columbus. A federal judicial last year decided on the Southern District of Ohio because the Southern District of West Virginia already had other MDLs assigned to it.

The lawsuits stem from a 2001 class-action. Residents living near the DuPont plant sued the company, claiming that it had known of the dangers of C8 for years. As part of a 2005 settlement, DuPont agreed to filter C8 from the water and provide millions of dollars for a science panel to study whether the chemical had harmed residents.

That study of 70,000 residents found probable links between C8 exposure and kidney cancer, testicular cancer, thyroid disease, high cholesterol, pregnancy-induced hypertension and ulcerative colitis, a type of inflammatory bowel disease. Residents with those health conditions, or surviving family members, are allowed under the settlement to file complaints against DuPont.

DuPont has said it will “vigorously defend against any and all such lawsuits not based upon valid science.”

“Lawsuits such as these ignore family history, lifestyle choices and other causes of health issues and disease in specific individuals,” the company said in a statement.

The difference between an MDL and a class action lawsuit is that each plaintiff sues separately in and MDL and must prove his or her case. Still, discovery is done jointly in the cases, and legal decisions affect all the cases. There is a steering committee of plaintiff lawyers that guides the cases, and depositions taken in one can be used in the others.

Typically, there are several bellwether cases first tried in an MDL. Deitzler said there are about 20 such cases in this MDL, and the first one is scheduled for September 2015. The second is set for November 2015.

After the bellwether cases are tried, the other cases can be settled, withdrawn or go to trial.

“Because of the fact that the first trials are not scheduled until September 2015, the spaced service of process has no detrimental impact on any case,” Deitzler said. “All will be served and processed long before any court deadlines arise.

“Also, there would be no advantage to any client if his/her case is served sooner. We will not be permitted to move forward with substantive court proceedings in any of the cases until the Multi-district Litigation (MDL) proceedings are completed before Judge Sargus in Columbus.”

The lawsuits ask for compensatory and punitive damages and payment of plaintiffs’ costs for the injuries caused by what is described as DuPont’s “reckless and negligent” contamination of drinking-water supplies.

DuPont has used C8, also known as perfluorooctanoic acid or PFOA, in making nonstick and stain- and water-resistant coatings for products — including pots, pans, carpets and clothes — for more than 50 years. Court records show DuPont scientists issued internal warnings about C8 as early as 1961.

The comprehensive C8  Medical Monitoring Program was created under the terms of a class action settlement between the impacted community residents and DuPont in 2005.

Under the terms of the settlement, DuPont agreed to pay the cost of medical monitoring for about 80,000 affected residents.  The most serious diseases linked to C8 exposure are kidney cancer, testicular cancer, ulcerative colitis and thyroid disease.  Other linked health conditions include pregnancy induced hypertension and hypercholesterolemia.

Of those 80,000 residents, fewer than 6,000 have signed up. And Deitzler noted that the medical monitoring of these residents is not related to the lawsuits.

“They have no bearing on each other,” he said.

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Organizations in this Story

U.S. Environmental Protection Agency (EPA)DuPont