Court's DuPont decision doesn't add up

By The West Virginia Record | Jun 4, 2010

Maybe things have changed since we were youngsters. Back then, there was only one right answer to a math problem and you either had it or you didn't. If the answer to the problem was 70 percent and you put down 40 percent, you were marked wrong. End of story. Better luck next time.

Maybe you meant to write 70 and wrote 40 by accident. Too bad. Intentions don't count. Unlike people, numbers don't equivocate. Numbers are clear-cut and straightforward. Numbers don't need to be interpreted or explained. Numbers speak for themselves.

A conniving youngster might argue that bad penmanship caused the 7 to look like a 4, but only the most gullible teacher would fall for that.

The West Virginia Supreme Court of Appeals must be using the New Math. According to a decision announced this week, the difference between 70 percent and 40 percent is of no real consequence -– even when those percentages represent tens of millions of dollars.

On Wednesday, the Court rejected DuPont's petition for a rehearing to consider additional reductions in punitive damages for the company's alleged contamination of a Harrison County community. The court had previously reduced a $196 million punitive damages award by 40 percent, concluding that defendants cannot be assessed for medical monitoring costs as a part of punitives. DuPont argued that the percentage of reduction should have been 70 percent, not 40.

"The court reduced the punitive damages award by 40 percent based on the [false] premise that the circuit court had allocated 40 percent of the punitive damages award to the medical monitoring claims," DuPont noted in its petition. "The court should instead reduce the punitive damages award by 70 percent because the value of the medical monitoring claim represents 70 percent of the total value of the non-punitive recovery."

Here's a math lesson for the Court: The difference between 70 and 40 is 30. It's a substantial difference, and in this particular case represents almost $60 million.

Class dismissed.

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