First appeal request heard in controversial $381 million case

By John O'Brien | Sep 9, 2008

R. Edison Hill

CHARLESTON - A Charleston attorney asked the state Supreme Court on Tuesday to allow landowners left out of a recent $381 million verdict against industrial giant DuPont back in.

R. Edison Hill said the agreements signed by landowners in the 1920s that prohibited lawsuits against a company that was later purchased by DuPont should not stop the owners of that land from getting their share of the verdict. DuPont is alleged to have contaminated the land around its zinc-smelting plant in Spelter.

"If these properties are left unremediated, through air currents and wind they can contaminate the properties that are cleaned up," Hill told the four participating justices. Justice Brent Benjamin granted the plaintiffs' request to recuse himself because he formerly worked at a firm representing T.L. Diamond & Co., a defendant in the case.

Benjamin was replaced by Mercer County Circuit Judge Derek Swope. Absent from the proceedings was Justice Joseph Albright, who decided not to participate in the fall term because of health reasons.

DuPont is asking the Court to hear its appeal of the verdict, while a request to consolidate the appeals is also pending. Hill told the justices he thought he had heard it was denied, but they told him no decision has been made.

Tuesday's proceedings dealt strictly with the so-called "Grasselli" issue.

Grasselli Chemical Co. owned the Harrison County plant from 1910-1928 and faced complaints from area residents who complained that pollution from the plant was ruining the soil and poisoning the livestock.

After a string of successful lawsuits, Grasselli entered into agreements with landowners that prevented future nuisance suits against the company and any of its successors.

Grasselli told the landowners that the problems could be treated with fertilizer. DuPont bought the company in 1928.

Harrison County Circuit Court Judge Thomas Bedell told residents with those agreements that they could not be part of the property remediation class in the suit. There is also a medical monitoring class.

"In 1928, thanks in part to Grasselli's own attempts to conceal the extent of the damage being caused by its smelter, the landowners believed the problem was generally 'smelter smoke' and had little, if any, understanding of the deadly chemicals contained within the smoke and the waste pile, much less an understanding of the dangers they presented to human health," Hill's petition says.

"As the parties now know, however, the surrounding land has been damaged by more than just excessive amounts of zinc oxide and sulphates. It has been contaminated with arsenic, cadmium and lead -- deadly metals that cannot be remedied with simple applications of fertilizer."

DuPont's response asserts that the plaintiffs attorneys are being greedy. The award was the largest toxic tort award in the country in 2007 and fifth overall, one of three West Virginia cases to finish in the top seven.

The award provides $55 million for remediation damages, $130 million in medical monitoring costs and $196.2 in punitive damages. Plaintiffs attorneys are estimated to be earning more than $100 million, also.

"Despite the amounts they were awarded (and the dozens and dozens of rulings favorable to them that paved the way for their record-setting judgments), Petitioners here seek review and reversal of one narrow summary judgment ruling that did not go their way," DuPont's response says.

"That ruling applied unambiguous releases and easements to a subset of the claims of a fraction of the class members. The Circuit Court's ruling correctly dismissed the property-damage claims of those class members whose chain of title contained releases of (and perpetual easements to) DuPont, through its predecessor in interest."

The plaintiffs argue that those who signed the agreements never could have foreseen that they would be used to shield the company from liability for releasing carcinogens into the environment and that the releases do not protect the operators of the plant from not using reasonable care and are contrary to public policy.

DuPont says it is much simpler than that.

"The Circuit Court's ruling was based on the plain meaning of the releases and easements, established law and the public policy in favor of enforcing arms-length settlement agreements," the company says.

"The ruling implicates no recurring legal issues that necessitate resolution by this Court. Instead, Petitioners simply quibble with the Circuit Court's case-specific application of the unambiguous terms of releases and easements entered into roughly 80 years ago."

Kandi Greter, a spokesperson for the Supreme Court, said a decision should be announced in a few days.

The case has recently been making headlines because of records that show Gov. Joe Manchin met with DuPont officials before submitting an amicus brief urging the Court to review the punitive damages portion of the award.

Mike Papantonio, the lead plaintiffs attorney from Pensacola, Fla., firm Levin Papantonio Thomas Mitchell Echsner & Proctor, says DuPont was using Manchin's office as a "puppet."

DuPont says it did nothing wrong and has every right to seek help from elected officials. Filings from the case can be viewed here.

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