Federal Judge Denies DuPont’s Attempt to Renege on Promise to Contaminated Community

DuPont currently faces thousands of lawsuits from persons injured as a result of drinking water the company contaminated with its proprietary chemical C8, a chemical is common in Teflon and non-stick goods. As the litigation has developed, Dupont has repeatedly fought compensating those injured by the company’s actions. A federal judge, however, recently had enough of the company’s activities and decided to stop the company from trying to renege on its promises to the injured.

“We are very happy with the Court’s order,” said Ned McWilliams, an attorney with the Levin, Papantonio law firm who practices in the areas of personal injury and environmental litigation. “DuPont should now hold up their end of the bargain that they made with the more than 80,000 people whose drinking water Dupont contaminated with a cancer causing chemical.”

On Wednesday, U.S. District Court Judge Edmund A. Sargus, Jr. handed down a decision that hopefully stops DuPont’s attempts at denying plaintiffs their right to recover for the suffering DuPont caused.

The history of C8 spans decades. Throughout much of that time DuPont was aware that the chemical had the potential to cause cancer and was also aware that the citizens near its Washington Works facility in Parkersburg, West Virginia were exposed. Here’s a detailed account of the history behind this case, from a lawsuit filed by Mr. McWilliams:

• Concerns about the potential toxicity of C-8 had been raised internally within DuPont by at least 1954, leading DuPont’s own researchers to conclude by at least 1961 that C-8 was toxic and, according to DuPont’s own Toxicology Section Chief, should be “handled with extreme care.”
• By 1976, DuPont was aware that researchers had reported to have found organic fluorine in samples of human blood from blood banks in the United States, which such researchers believed to be a potential result of C-8 exposure.
• By 1978, DuPont’s Medical Director was informed by DuPont’s C-8 supplier at the time (the 3M Company) that 3M had collected blood samples from its workers exposed to C-8 and that such workers had organic fluorine in their blood.
• In 1978, DuPont’s Medical Director authorized a plan to review and monitor the health conditions of DuPont workers potentially exposed to C-8 to assess whether any negative health effects were attributable to that exposure, including obtaining blood samples from those workers and analyzing the blood for organic fluorine content.
• In sworn deposition testimony in 2004, DuPont’s former Medical Director acknowledged that DuPont’s duty to report potential health hazards from materials it uses at its Plant (as previously described in his Article) extends to the communities in which DuPont’s plants are located.
• By March 1979, DuPont had data suggesting that its workers exposed to C-8 had a significantly higher incidence of various adverse health problems than those workers not so exposed, and that the number of workers exposed to C-8 with abnormal liver function tests was notably higher than in the workers not so exposed.
• In 1979, DuPont did not report to any government agency or community near any of its manufacturing facilities handling C-8 the results of its testing of workers exposed to C-8 or the results of its analysis of their health status in comparison with those not so-exposed.
• By 1980, DuPont had confirmed internally that C-8 “is toxic,” “people accumulate C-8”, and “continued exposure is not tolerable.”
• In response to the eye defect findings, DuPont prepared and implemented an internal study in 1981 of its own female employees exposed to C-8 at the Plant to see if any similar eye or facial defects had occurred among babies born to those C-8-exposed employees (the “1981 Plant Pregnancy Study”), noting specifically in its own protocol for the study that the precise purpose of the 1981 Plant Pregnancy Study was to determine if “[p]regnancy outcome among female Washington Works employees is causally related to their occupational exposure to C-8.”
• In its 1981 Pregnancy Study, DuPont specifically noted that finding “2 malformations in 10 exposed live births is a significantly higher rate than a national rate … [and] is also significantly higher than a plant rate,” and would be considered by DuPont to be a “statistically significant excess” of such birth defects.
• Following its internal 1981 Pregnancy Study protocol, DuPont collected information, including blood results from female Plant employees and their babies (including umbilical cord blood) and interviews of such employees by the Plant doctor, which indicated that two of seven human babies born to female Plant employees exposed to C-8 through manufacturing operations at the Plant had been born, not only with defects in the area of their eyes and/or face, but with significantly elevated levels of C-8 in their blood, indicating to DuPont that C-8 could cross the placenta from C-8-exposed mother to child during pregnancy.
• After collecting information indicating that two out of the seven human babies whose mothers had been exposed to C-8 at the Plant had been born with facial defects, and thus there was a “statistically significant excess” of such defects according to DuPont’s own 1981 Pregnancy Study Protocol designed specifically to assess causality between C-8 exposure and such harm, DuPont intentionally and purposefully chose not to finalize, publish, and/or otherwise release and/or disclose the results of that study outside DuPont.
• In 1984, several male workers at the Plant exposed to C-8 in the work place for a few years complained that their wives were having difficulty conceiving children but DuPont did nothing to investigate the claim.
• By 1984, DuPont began a program of secretly collecting samples of tap water reported to be from public drinking water supplies located near the Plant by having Plant employees collect tap samples from local businesses and/or their own homes, and arranged for internal analysis of the samples at DuPont for the purpose of assessing C-8 content.
• By at least 1988, DuPont was aware that at least one toxicity study in laboratory rats had found that C-8 exposure was related to increased rates of cancer, including testicular cancer.
• Beginning later in 1991, water samples analyzed by and/or on behalf of DuPont at its own Experimental Station Laboratory from public water supplies in the vicinity of the Plant indicated levels of C-8 well-above 1 ppb, with the highest levels (as high as 3.9 ppb) being found in water from the new LPSD well field, now located several miles further away from the Plant.
• After finding levels of C-8 in public water supplies near the Plant that were more thandouble or three times the CEG developed by DuPont as an internal community exposure safety guideline, DuPont prepared information to disclose such facts to the residents drinking such contaminated water but then purposefully and intentionally chose not to release and/or otherwise disclose that information outside the company.   
• Rather than alert the community to the C-8 contaminated water, DuPont decided to try to generate data that would reflect lower C-8 sample results by switching in November 1991 to a new outside laboratory to analyze the water for C-8 content, which laboratory claimed to be able to detect C-8 in water as low as 0.1 ppb (100 ppt) (the “”New Water Method”).
• At the time DuPont decided to begin using the new outside laboratory for C-8 water analyses using the New Water Method, that laboratory had told DuPont that the New Water Method had surrogate recovery rates that resulted in the reported C-8 results being only approximately 60% of the C-8 actually in the water, so the reported C-8 sample results derived using the New Water Method would need to be corrected to account for the low surrogate recovery rates, otherwise those persons reading the results would be misled into believing that the level of C-8 in the water was significantly lower than it actually was.
• Despite being warned that data generated by the new C-8 water analysis methodology would suggest C-8 levels that were significantly lower than the level of C-8 likely present in the water and that such data would have to be clarified and/or corrected to avoid being misleadingly inaccurate, DuPont knowingly, intentionally, maliciously, willfully, wantonly, purposefully, recklessly, and/or negligently failed to make such corrections and/or clarifications when it eventually revealed such data to third parties, including public water suppliers, their customers, and/or governmental entities.
• In November 2000, one of DuPont’s in-house counsel responsible for C-8 issues wrote the following to his co-counsel at DuPont:  “I think we need to make more of an effort to get the business to look into what we can do to get the [impacted West Virginia] community a clean source of water to filter the C-8 out of the water.  … We are going to spend millions to defend these lawsuits and have the additional threat of punitive damages hanging over our head.  Getting out in front and acting responsibly can undercut and reduce the potential for punitives. … Our story is not a good one, we continued to increase our emissions into the river in spite of internal commitments to reduce or eliminate the release of this chemical into the community and the environment because of our concern about the biopersistence of this chemical.”
• One of DuPont’s other in-house counsel responsible for C-8 issues (and DuPont’s defense of the Tennant Case) also wrote:  “The sh[..] is about to hit the fan in WV, the lawyer for the farmer finally realizes the surfactant [C-8] issue …. F[..]k him.  Finally the plant realizes it must get public first, something I have been urging for over a year.”
• On April 8, 2001, DuPont’s in-house on C-8 issues described DuPont’s C-8 as a material that “we poop to the river and into drinking water along the Ohio River.”
• On June 14, 2001, DuPont’s in-house counsel on C-8 issues wrote that “the environmental agencies very concerned about what to say when asked if the stuff we are putting into drinking water is ‘safe.’ We say it is, but are viewed as an interested party (rightly).”
• On September 1, 2001, soon after the Tennant Case had settled and a new class action lawsuit had been filed in West Virginia state court against DuPont arising from C-8 contamination of drinking water supplies near the Plant, styled Leach, et al. v E.I. du Pont de Nemours and Co., Civil Action No. 01-C-608 (Wood Cty. W. Va. Cir. Ct.) (the “Leach Case”), DuPont’s in-house counsel on C-8 issues wrote: “I can’t blame people if they don’t want to drink our chemicals.  The compound … is very persistent in the environment, and on top of that, loves to travel in water and if ingested or breathed wants to stay in the blood, the body thinks it is food, so pulls it from the intestine, the liver then dumps it back to the stomach because it can’t break it down, then the intestines puts it right back into the blood.”
• On October 12, 2001, DuPont’s in-house counsel on C-8 issues wrote in connection with C-8 drinking water contamination:  “A debacle at best, the business did not want to deal with this issue in the 1990s, and now it is in their face, and some still are clueless.  Very poor leadership, the worst I have seen in the face of a serious issue since I have been with DuPont.”
• On October 13, 2001, DuPont’s in-house counsel on C-8 issues wrote with respect to C-8 contamination near the Plant: “[W]e are exceeding the levels we set as our own guideline, mostly because no one bothered to do the air modeling until now, and our water test has [been] completely inadequate. …I have been telling the business to get out all the bad news, it is nice to see that we are now consulting with lawyers … that … are advising the same strategy.  Too bad the business wants to hunker down as though everything will not come out in the litigation, god knows how they could be so clueless, don’t they read the paper or go to the movies?”
• On October 20, 2001, after analysis of certain water samples from the LPSD indicated C-8 levels less than 1 ppb, DuPont’s in-house counsel on C-8 issues wrote: “Now if the clients will only listen to us on doing free testing and giving away bottled water we might avoid punitive damages.”
• On January 12, 2002, after test results indicated levels of C-8 as high as 7 ppb in water from the LHWA in Ohio, DuPont’s in-house counsel on C-8 issues wrote that “in addition to all the agencies we have had on our butts, we now have Ohio and another EPA Region, not to mention the 20,000 people who drink the water supplied by Little Hocking with our surfactant in it, likely it has been there for at least the last decade.”
• On February 9, 2002, DuPont’s in-house counsel on C-8 issues wrote with respect to C-8 contamination: “We should have checked this out long ago, but now our only choice is to share whatever we learn and trying to fix things, best current theory is air deposition from our stacks.”
• Between late 2001 and 2003, DuPont orchestrated, coordinated, and participated in creative, misleading efforts designed and intended by DuPont to generate a new federal- and/or state-“approved” “screening level” for C-8 in drinking water supplies through creation of a “C-8 Assessment of Toxicity Team” (a/k/a “CAT Team”), which “screening level” would be significantly higher than DuPont’s own 1 ppb CEG and would be held out by DuPont to the public, including Plaintiff, as proving the lack of any health risk or safety concerns with respect to the level of C-8 in drinking water supplies near the Plant.

Joshua is a writer and researcher with Ring of Fire. You can follow him on Twitter @Joshual33.