Settlement terms argued in DuPont case

By John O'Brien | Nov 14, 2006

Harry Deitzler

Larry Janssen

PARKERSBURG - After three years of arguing, the two sides in a class action lawsuit brought against DuPont finally agreed on a settlement in August 2004.

Monday in Wood Circuit Court, they met again to argue the interpretation of the terms.

Charleston attorney Harry Deitzler argued on behalf of a class of Parkersburg-area residents who say DuPont's Washington Works plant is liable for releasing a chemical known as "C8" into six water districts during its production of Teflon-coated cookware.

Deitzler had filed a motion to enforce the settlement against DuPont, which has been hesitant to allow for health tests to be performed by a three-person science panel on its employees.

"The judge said that if the science panel wanted the information, they'd get it," said Deitzler, of Hill, Peterson, Carper, Bee and Deitzler. "He didn't tip-toe around the issue."

Judge Arthur Gustke, a substitute senior status judge who has been pitching in at Wood Circuit Court during the nine-month absence of a full-time judge to replace the retired George Hill, decided that DuPont must comply with any requests made by the science panel, as long as the panel proves they are necessary for its study.

"Let them put it in, study it very carefully and in good faith, make sure that they're not asking for something that they don't really need, OK?" Gustke told Deitzler and DuPont's attorney, Larry Janssen of Steptoe and Johnson's Los Angeles office.

The settlement, originally worth $107.6, provided the creation of the science panel that consists of three epidemiologists. As scientists with no monetary interest in the results, they were instructed to research the effects of C8 on humans.

Approximately $70 million of the settlement went to another health study, the C8 Health Project, which tested almost 70,000 of the possibly affected individuals. The results of that study were made available to the science panel, while Deitzler argues that a superficial study on Washington Works employees performed by DuPont was not good enough for the panel.

As the panel tried to perform its own study on the employees, a DuPont attorney sent the panel a letter that said, "Please stop all work related to an incidence of disease study of DuPont's Washington Works employees."

In response, the panel sent an e-mail that stated, "The science panel regrets DuPont's decision to cancel our proposed worker cohort study. The population in question, DuPont employees, is a relatively highly exposed population. Understanding the potential health effects of C8 in the community will be markedly enhanced by understanding the health effects of C8 in the more highly exposed workers."

DuPont recently released a summary of its own C8 test of more than 6,000 employees and said it found slightly elevated levels of kidney cancer, heart disease and diabetes. However, they said the statistics were not significant enough to provide a link to C8 exposure.

During the hearing, Deitzler argued:

-That DuPont violated terms of the settlement by sending the letter directly to the science panel and not to Garden City group, a third party intermediary that acts as the settlement administrator;

-That DuPont's own study was subject to the Healthy Worker Effect, which states that the working population at any plant is expected to be healthier than the general population because employers do not hire individuals with apparent illnesses, and has not been submitted to the science panel.

-That "what the science panel has asked for is an ability to do a different sort of analysis on the data, and they aren't going to give us that even though the settlement agreement requires it."

-That DuPont employees are members of the class represented in the complaint and are subject to science panel testing;

-That DuPont's submission of its own study to the science panel would ruin the independence of the results;

-And that the panel's quarterly reports should be filed with the court to keep it up to speed.

In response, Janssen countered:

-That DuPont workers are not members of the represented class because they are company employees;

-That a special master involved in the negotiations be put in charge of resolving settlement disputes because he or she will be more familiar with the situation.

-That DuPont's own 73-page study was in-depth enough and lists any faults that the non-encompassing research may have;

-That DuPont has no obligation to turn over the results of the study to the science panel, though it will if asked;

-And that DuPont is planning a follow-up study of disease incidence that it will perform itself.

In addition, Janssen said Deitzler is "confusing the right to the data to the ability to do the study," and that Jim Lamp, who was present during mediation, should decide if the settlement's wording allows for the science panel to test DuPont employees because he is more familiar with the situation than the court.

Tuesday, the panel held a press conference in Vienna and announced plans to do a follow-up study on participants of the C8 Health Project to which $70 million of the settlement went.

Gustke has asked that the panel submit a list of information it wishes to collect from DuPont a line can be drawn "between what they really need in order to be able to arrive at the decisions that they're going to arrive at."

"DuPont is willing, as I understand, to... 'give to the panel...' all the information which the panel will say that they need for their purposes," he added.

The science panel's preliminary results were expected to be released in January, but full results may not be available until 2011. The chemical has been known to cause abnormalities in animals, but its effects on humans are so far relatively unknown.

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