The United States Court of Appeals for the Sixth Circuit upheld an Ohio jury’s $40 million verdict against DuPont for allegedly contaminating drinking water with a cancer-causing chemical.
Let’s take a closer look at the Ohio toxic tort lawsuit.
In the 1950s, DuPont began using C-8 for manufacturing Teflon products in its manufacturing plant in Parkersburg, West Virginia.
C-8 is known as a “forever chemical” because it persists in the human body and the environment.
In the 1960s, DuPont learned that C-8 was toxic and was reaching the groundwater in the communities surrounding its plant. In the 1980s, DuPont internally categorized C-8 as both a human carcinogen (a substance that is capable of causing cancer) and a forever chemical.
Nevertheless, DuPont continued to discharge the chemical into the air, the Ohio River, and landfills until the early 2000s.
The DuPont class action lawsuit
In the early 2000s, individuals who had consumed the contaminated water near the West Virginia manufacturing plant began filing lawsuits for their alleged injuries caused by C-8 exposure. In 2002, West Virginia certified a class of nearly 80,000 individuals.
The parties in the class action lawsuit entered into a settlement agreement in which DuPont agreed to treat the contaminated water and inform the communities about the dangers of C-8 exposure. Additionally, the parties agreed to allow epidemiologists to study the effects of C-8 exposure and then reduce the number of plaintiffs in the class action lawsuit so the class action lawsuit would only include plaintiffs who had diseases that the scientists could link to C-8 exposure.
The scientific study took seven years, and the cases that remained were consolidated into multidistrict litigation (MDL).
MDL is a legal proceeding intended to promote efficiency in the courts. Each case in the MDL remains a separate case, but a single judge oversees all of the discovery and pretrial proceedings.
Once the discovery and pretrial proceedings are completed, each case is transferred back to its original district for trial. The MDL judge can also select an individual case for a “bellwether trial.” This trial takes place before all of the other trials and serves as a test to see how juries will rule on the facts of the case, which helps all of the other plaintiffs decide whether to continue with their trials or settle.
The bellwether case against DuPont awarded Carla Bartlett $1.6 million in compensatory damages for her claim that DuPont caused her kidney cancer. Following the bellwether trial, DuPont settled with the remaining plaintiffs.
Additional lawsuits were filed in subsequent years as more people became sick, including Travis Abbott.
Travis Abbott vs. DuPont
Travis and his wife, Julie Abbott, lived and worked in and around Pomeroy, Ohio, for 20 years. At age 16, Travis found a mass in his left testicle and was diagnosed with testicular cancer. The cancer quickly spread to his lymph nodes.
Travis filed a negligence lawsuit against DuPont. The lawsuit argued that DuPont failed to use ordinary care by dumping chemicals into the water that they should have known would cause cancer.
DuPont presented evidence about potential alternative causes of Travis’ cancer, but the jury ultimately agreed with Travis and awarded him $40 million. The jury also awarded Travis’ wife $10 million for loss of consortium.
Statute of limitations in toxic tort cases
One of the key issues in the DuPont case was whether Travis filed his lawsuit after the statute of limitations had expired.
The statute of limitations is a law that limits the amount of time a plaintiff has to file a lawsuit. If the plaintiff files the lawsuit after the statute of limitations has run, the lawsuit is forever barred.
The statute of limitations is different in every state. For toxic tort claims in Ohio, the statute of limitations is two years. The clock begins to tick when “the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure.”
Travis received his cancer diagnosis in October 2015. He filed his lawsuit in November 2017 (more than two years after his diagnosis). DuPont argued that the statute of limitations had run.
However, DuPont did not present evidence that Travis knew about the connection between his cancer and C-8 at the time of his diagnosis. In other words, the statute of limitations didn’t start to run until Travis found out that his cancer could have been caused by his exposure to C-8, and Travis did not find out that information until well after he was diagnosed.