DuPont Moves to Block ‘Double-Dipping’ by West Virginia Plaintiffs

DuPont wants a judge to deny plaintiffs in a West Virginia personal injury case the right to enroll in a related, court-administered medical monitoring program, arguing there’s no point in testing for early detection of illnesses if they’re already sick.

But lead plaintiff Rebecca Morlock argued that she and her neighbors are still being exposed to arsenic, cadmium, lead and zinc from the site of a former zinc-smelting plant in Spelter, and some illnesses can take as long as 40 years to develop.

“It is impossible to predict today what illnesses may manifest tomorrow,” she said.

Morlock and 14 others sued the chemical company in Harrison County Circuit Court last summer after their 2007 victory in a long-running class-action lawsuit.

The smelter in north-central West Virginia produced more than 4 billion pounds of slab zinc and 400 million pounds of zinc dust for use in rustproofing products, paint pigments and battery anodes. By 1971, a toxic waste pile stood 100 feet tall and covered nearly half of the 112-acre site. Dust often blew into homes.

The plant closed in 2001, and DuPont worked with state regulators to demolish buildings and cap the site.

But in 2007, a jury ruled DuPont was negligent in creating the waste pile, and that it had deliberately downplayed and lied to its neighbors about possible health threats. It awarded $380 million in punitive damages — an amount the state Supreme Court later cut to $196 million.

The high court affirmed that thousands of residents were entitled to a $130 million, 40-year medical monitoring program and a $55.5 million cleanup fund for private properties.

DuPont had been appealing, but abruptly offered last fall to settle.

The $70 million agreement that Circuit Judge Thomas Bedell approved in January included $4 million to be set aside for cash payments to people who are eligible for medical monitoring because their exposure increases their risk of becoming sick.

The remaining $66 million is to clean up contaminated properties, launch the medical monitoring program, pay attorneys and pay the plaintiffs.

DuPont also offered a 30-year medical monitoring program for people who meet certain residency requirements. Its cost depends on the number of participants.

The settlement, which wiped out the $196 million punitive damage award, did not prohibit the filing of personal injury claims, and Morlock argues the current illnesses are separate from those that she and others might still develop.

The plaintiffs claim dozens of maladies they blame on DuPont and are demanding damages for pain and suffering, lost wages, and medical testing and treatment.

Among their complaints are: ovarian and uterine cancer; bipolar disorder and mental distress; kidney problems; migraine headaches; seizure-like activity; skin lesions; low IQ scores; numbness and tingling of extremities; and thyroid, vascular and connective tissue diseases.

“Medical monitoring only tests for latent diseases. It will not treat them,” Morlock said. “It is clearly two different things.”

DuPont spokesman Dan Turner, meanwhile, argues that if someone is already sick, “the law precludes them from also seeking medical monitoring for that specific injury or disease.”

“There is no longer a reason for that person to be monitored,” he said in an e-mail. “They have already developed a related disease, as they allege.”

The medical monitoring program is set to begin in September. Turner said the number of people registered remains in flux but is believed to be more than 2,000.

A claims administrator still must verify eligibility, and he said DuPont is working diligently with the administrator on that.

Under the judge’s January order, participants will be tested every two years. The exams may include blood, urine, skin and gastrointestinal tests, as well as lung cancer screenings.

The exact battery of tests depends on the person’s age at the time. Some may also get a CT scan.