By Kathleen Bianco, J.D.
In the first non-bellwether case selected for trial in a multidistrict litigation involving the dumping of toxic chemicals by E.I. du Pont de Nemours (DuPont) at its manufacturing facility in Wood County, West Virginia, a federal district court jury in Ohio awarded an Ohio resident $10.5 million in punitive damages based on its earlier finding that DuPont had acted maliciously in dumping the chemicals and that the resident’s exposure to C8 had caused him to develop testicular cancer. The jury previously had awarded the resident $2 million in compensatory damages. In addition to the punitive damages award, the jury found DuPont liable for the resident’s attorney fees to the injured resident (Vigneron v. E.I. Du Pont de Nemours and Co., January 5, 2017, Sargus, E.).
This MDL action arose out of allegations that DuPont’s discharge, venting, and/or release of perfluorooctanoic acid (PFOA) and/or ammonium perfluorooctanoate (a/k/a C-8/APFO/PFOA) in connection with its manufacturing operations caused the contamination of the drinking water at the Little Hocking PSD water district. The underlying complaint charged that the dumping of these chemicals began as early as the 1950s, and that DuPont knew as early as 1954 that there were concerns about the potential toxicity of C-8. The underlying complaint in one of the bellwether actions also provided a detailed history of the studies done on human blood samples and female employees, along with other available data, all of which suggested that there was a causal connection between occupational exposure to C-8 and various health and pregnancy issues.
The resident had surgery on April 23, 1997 for a left radical orchiectomy to remove his left testicle. After surgery, the pathology report revealed that he had testicular cancer. A CAT scan showed that the tumor had metastasized to the retroperitoneal lymph nodes. He underwent three cycles of chemotherapy followed by approximately ten years of cancer surveillance. He sought to recover damages for mental distress and anxiety over contracting—in the future—cancer related to his testicular cancer and treatment regimen.
Prior rulings. The court rejected DuPont’s motions for summary judgment relating to specific causation and to "cancerphobia" damages. For the first, the court found the resident had proffered sufficient evidence to allow a jury to find that his testicular cancer had been caused by his exposure to C-8 released into the water supply by the manufacturer [see Products Liability Law Daily’s November 8, 2016 analysis]. In the second summary judgment ruling, the company had argued that the resident could not recover for cancerphobia because Ohio does not recognize a stand-alone negligent infliction of emotional distress claim when there is a contemporaneous injury, and that allowing the resident to recover these damages would present a risk of duplicative damages. The trial court ruled in the plaintiff's favor, however, finding that under Ohio law, a plaintiff can recover for emotional distress that manifests itself as cancerphobia. While the court said that the resident could seek damages for emotional distress over contracting cancer in the future, it also ruled that the resident was not entitled to recover emotional distress damages based on his alleged anxiety or fear of developing other probable diseases that had been linked to C-8 exposure because those diseases could not be linked to his cancer [see Products Liability Law Daily’s other November 8, 2016 analysis].
Jury verdict. In December 2016, the jury found in favor of the resident on his negligence claim against DuPont and awarded him $2 million in compensatory damages [see Products Liability Law Daily’s December 22, 2016 analysis]. At that time, the jury also found that DuPont had acted with malice and conscious disregard for the public in dumping C8 into the environment leading to the contamination of local drinking water supplies. Following a Phase 2 trial, the jury awarded $10.5 million dollars in punitive damages.
The case is No. 2:13-cv-136.
Attorneys: Jon C. Conlin (Cory Watson Crowder & DeGaris) for Kenneth Vigneron, Sr. C. Craig Woods (Squire Patton Boggs US LLP) for E. I. du Pont de Nemours and Co.
Companies: E. I. du Pont de Nemours and Co.
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