DuPont: West Virginia Court Should Overturn Smelter Case

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Chemical maker DuPont urged the West Virginia Supreme Court to fix what it called mistakes that led to a nearly $400 million verdict against the company by overturning the case.

The court can order a new trial or even decide the case in DuPont’s favor, lawyer David Thomas said during oral arguments. DuPont contends Harrison County Circuit Judge Thomas Bedell erred by not ruling the plaintiffs filed the lawsuit after the statute of limitations had expired, among other things.

“It’s time to start over,” Thomas said.

The case centers on a 2007 Harrison County jury’s decision that DuPont downplayed and lied about health threats on and around the site of a former zinc plant in Spelter. Damages awarded against the giant chemical maker included $196 million meant to punish it for its conduct; $130 million to fund a 40-year health screening program for area residents; and $55.5 million to clean up private properties.

Landowners’ attorney Farrest Taylor countered that Bedell was not mistaken and the verdicts should stand. The plaintiffs have filed their own appeal seeking to expand a cleanup plan that they say improperly excludes about 300 people with property near the former smelter.

Several of the court’s five justices asked repeatedly about the statute of limitations issue, which Taylor contended was decided properly by Bedell. The clock started ticking in 2003 when landowners first learned that lead, arsenic and other pollutants had contaminated areas beyond the smelter site, which DuPont and the state Department of Environmental Protection had denied, he said.

Taylor likewise defended Bedell’s decisions to allow the case to proceed as a class-action lawsuit and to allow the jury to award punitive damages.

“The class area was defined using two things: sampling and a computer model,” Taylor said. “The cancer risk is found in the contamination in the homes, in the air, in the dust.”

DuPont also continued its argument that the verdict is punishment for cleaning up the site at the direction of the U.S. Environmental Protection Agency and state Department of Environmental Protection years after it had sold the business.

“We did exactly what they told us to do,” Thomas said.

Taylor countered that DuPont was using the agencies in an attempt to avoid greater environmental scrutiny.

“It’s unfair to allow DuPont to hide behind agency action and inaction,” Taylor said.