Judge rules in area C8 case

CHARLESTON - A group of Parkersburg residents has persuaded a federal judge to let it press DuPont to fund a medical monitoring program.

However, Monday's ruling from U.S. District Judge Joseph Goodwin also benefited DuPont by granting some of its motions regarding other aspects of the residents' 2006 lawsuit against the chemical company.

In the lawsuit filed in 2006, the residents allege exposure to ammonium perfluorooctanoate from DuPont's Washington Works plant in Washington, W.Va., through the Parkersburg Water District. Also known as PFOA or C8, the chemical is used to make Teflon.

The case had also sought damages alleging negligence, reckless conduct and other grounds. Goodwin's ruling affected those allegations, denying most of them. The surviving portion seeks health screenings to detect any long-term health issues.

DuPont previously agreed to spend $70 million on such a program to settle a 2001 C8 lawsuit involving residents of six public water districts in West Virginia and Ohio.

Dan Turner, DuPont public affairs spokesman, issued a statement Monday evening regarding Goodwin's order.

"We are still in the process of reviewing Judge Goodwin's order, but are pleased he has dismissed virtually all the claims. The company will continue to defend itself as the case proceeds," Turner said.

Plaintiffs' attorney Harry Deitzler said "the judge's ruling is certainly comprehensive and confirms our clients' concerns about the potential adverse effects of the chemicals on human health."

"The ruling allows the case to proceed in part on its merits, although it precludes moving forward with class action status," he said Monday night. "The clients' primary concern remains the fact that there is C8 in the Parkersburg water."

Dietzler said it was too early to say what the next step will be, whether the plaintiffs will appeal Monday's ruling or continue with the case as it now stands.

"In any situation such as this, everyone is trying to do the right thing. It's just that sometimes affected local citizens and reputable companies approach issues like this from different perspectives," he said.

In his 41-page ruling Monday, Goodwin denied one motion by DuPont, a request for summary judgment based on the statute of limitations. Another motion, a request for summary judgment on the plaintiff's case on other issues, was denied in part and granted in part.

The plaintiffs' motion to certify the case as a class action was denied as moot, the ruling said.

The case is the second of two filed against DuPont since 2001, this one by residents in the Parkersburg Water District. A motion by the plaintiffs to make it a class action in January 2008 was denied by Goodwin in September of that year. A motion to appeal that denial was denied by the U.S. Fourth Circuit Court of Appeals.

The plaintiffs then filed a motion seeking to include a class claim for public nuisance, under the criteria: negligence; gross negligence, reckless, willful and wanton conduct; private nuisance; past and continuing trespass; past and continuing battery; medical monitoring; and public nuisance. They sought compensatory and punitive damages; costs and fees; as well as medical monitoring, the abatement of C8 releases from the plant and the provision of alternative drinking water.

In March 2009, DuPont filed a pair of motions for summary judgment in response to the public nuisance claim, one based on the passage of the two-year statute of limitations and a general request for judgment.

"The resolution of the two summary judgment motions is appropriate at this time despite the pending motion of class certification," Goodwin wrote in his ruling. "A district court should certify a class 'at an early practical time.' This rule affords a district court discretion to rule on a summary judgment motion before ruling on a class certification motion. Since this Order grants the defendant's Motion for Summary Judgment with respect to the plaintiffs' public nuisance claim, the plaintiffs' pending Motion for Certification of Non-Medical Monitoring Claims is denied as moot," the ruling said.

Goodwin denied DuPont's motion on the statute of limitations issue, saying there exist genuine issues of material fact still to be determined as to whether the company's past actions constitute an injury-in-fact, as alleged by the plaintiffs. For that reason, the case falls under the "continuing tort" classification.

In the general motion, Goodwin said the plaintiffs' claims of negligence, gross negligence and reckless, willful and wanton conduct fail to allege a sufficient injury for the claims to independently survive. There are questions as to whether the amount of C8 in the Parkersburg Water District water can cause a significantly increased risk of disease and whether DuPont's actions caused the C8 presence in that water and the plaintiffs' blood.

Goodwin ruled the plaintiffs have not alleged injury sufficient to support their free-standing negligence claims and ruled in DuPont's favor on that issue.

He also ruled that the plaintiffs didn't provide sufficient support for their claims of public and private nuisance, ruling in DuPont's favor on those issues as well. Goodwin also ruled in the company's favor on the issues of battery and trespassing.

Goodwin did rule in favor of the plaintiffs on the issue of medical monitoring, which seeks to force DuPont to pay for medical monitoring for early detection of any illnesses linked to C8 contamination.

"Thus, for purposes of establishing independent tortious conduct to support the plaintiffs' medical monitoring claim, the plaintiffs have set forth sufficient evidence of at least negligence. DuPont had a duty to avoid unreasonable harm; the plaintiffs' pleadings sufficiently allege a breach of that duty; and .... I find the evidence of causation sufficient to withstand summary judgment. The plaintiffs cannot recover under their negligence cause of action because they have shown no compensable injury. But the plaintiffs' negligence claims survive to the extent that they may support their medical monitoring claim.

"Because the plaintiffs have raised questions of material fact with respect to each element of their medical monitoring claims, DuPont's motion for summary judgment with respect to this claim is denied," the ruling states.