West Virginia Record

Saturday, April 4, 2020

Federal judge denies two motions filed in DuPont MDL

By Kyla Asbury | Jul 27, 2015


CHARLESTON – An Ohio federal judge has filed two orders denying DuPont's motion for summary judgment and its proposed causation experts.

District Judge Edmund A. Sargus Jr.'s order tossing out the proposed causation experts was granted in part and denied in part. The order was filed July 20 in the U.S. District Court for the Southern District of Ohio.

DuPont claimed that its experts are not opining on general causation, but rather the opinions are directed at specific causation.

"In the specific causation inquiry, DuPont continues, it is necessary for the experts to scrutinize the probable link reports to determine whether the trial plaintiffs' dose of and/or exposure to C-8 is capable of causing their linked disease," the order states. "DuPont argues that the trial plaintiffs 'are mischaracterizing the science panel's findings' because the 'science panel did not find that all Leach class members had an equal, materially increased risk of developing a probable link disease.'"

DuPont's arguments are not well taken, according to the order.

"DuPont's position would prevent the probable link findings from applying to the trial plaintiff," the order states. "DuPont relies upon its experts' ability to dissect the science panel's probable link reports to show what the panel did not find."

The probable link findings are valid and reliable evidence admissible to establish that it is more likely than not that there is a link between the trial plaintiffs' exposure to and/or dose of C-8 and their linked diseases.

The court concludes that the trial plaintiffs have met their burden of showing that Drs. Robert Gross, Vitaly Margulis and Robert Bahnson's  expert reports are admissible.

In the order denying DuPont's motion for summary judgment, Sargus stated that the evidence submitted by the trial plaintiffs is sufficient to allow a reasonable juror to conclude that C-8 specifically caused their linked diseases. The order was filed July 21, also in Ohio federal court.

"As this court concluded ... the trial plaintiffs' expert witnesses reliably 'ruled in' potential causes and risk factors of trial plaintiffs' linked diseases, and then systematically 'ruled out' potential causes and risk factors in arriving at their medical causation opinions," the order states. "The expert witnesses' ultimate conclusion is that the trial plaintiffs exposure to C-8 was a substantial contributing factor to their linked diseases."

DuPont's specific causation experts reach the opposite conclusion, according to the order.

"The issue before the court reflects a quintessential questions for determination by a jury," the order states. "That is, the weight to be given evidence and the credibility to be accorded to any particular witness are unquestionably the province of the jury."

The court denied both DuPont's motion for summary judgment on the individual claims of Carla Marie Bartlett based on specific causation and DuPont's motion for summary judgment in the individual claims of John Wolf based on specific causation.

Kathy A. Brown of Kathy Brown Law, one of the plaintiffs' attorneys, said they are pleased with the orders from Sargus.

"We are very pleased with this judge's orders and that he is making DuPont hold up its end of the bargain with respect to the Leach settlement agreement," Brown said.

DuPont's corporate press contact did not respond to requests for comment.

Attorneys for the plaintiffs include Brown; Robert A. Bilott and David John Butler of Taft Stettinius & Hollister; Stuart Calwell of the Calwell Practice; William Franklin Cash III of Levin Papantonio Thomas Mitchell; Gregory Harold Collins Davis & Young; and Jon C. Conlin and Annesley DeGaris of Cory Watson Crowder & DeGaris.

DuPont is represented by Aaron Todd Brogdon, Damond R. Mace and C. Craig Woods of Squire Patton Boggs LLP; James B. Lees Jr.; David J. Millstone; and Niall A. Paul and Clifford F. Kinney Jr. of Spilman Thomas & Battle.

The first of the MDL lawsuits to go to trial is scheduled for Sept. 14 in Columbus and is expected to last four weeks.

The litigation between DuPont and the plaintiffs began in 2001 in a class action lawsuit in Wood Circuit Court and ended in November 2004 when the parties entered into a class-wide settlement.

The litigation involved C-8 that was discharged from DuPont's Washington Works plant and the settlement agreement provided that if a science panel delivered a no probable link finding, the class members would be forever barred from bringing personal injury or wrongful death claims against DuPoint.

However, if the science panel found that it was "more likely than not that there is a link between C-8 and a particular human disease among class members," the panel issued a probable link finding for that specific disease and DuPont waived its right to challenge whether it is probable that exposure to C-8 is capable of causing the linked disease.

U.S. District Court for the Southern District of Ohio case number: 2:13-md-02433

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