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DuPont Trials Provide Critical Answers, Compensatory Damages

scales of justiceDuPont has now gone through two full trials to determine if its chemical called C-8 is responsible for a handful of cancers. The company had been dumping the chemical that used to make Teflon and Stair Master carpet into the Ohio River — something that two separate juries had determined caused kidney and testicular cancer in the specific cases brought before them.

On Friday, a jury found that DuPont would have to $500,000 in punitive damages meant to teach it a lesson. On Wednesday of last week, it awarded $5.1 million in compensatory damages — or actual damages — to David Freeman, a professor at Marietta College. It concluded that his testicular cancer had been linked to C-8.

In October 2015, a different jury had awarded $1.6 million to a woman who said that the exposure to C-8 had led to her kidney cancer. She did not receive any punitive damages.

“The Freeman verdict will be appealed, and there are substantial legal grounds to challenge the result,” says Cynthia Salitsky, Chemours spokeswoman, in an emailed statement. “This type of litigation could take place over many years, and interim results do not predict the final outcome.

“DuPont is the named defendant in each of these cases and is directly liable for any judgment. In the event DuPont claims that it is entitled to indemnification from Chemours as to some or all of the judgment, Chemours retains its defenses to such claims,” she continues.

To be clear, DuPont spun-off Chemours after an independent group of scientists had linked C-8 with certain cancers. It is now a totally separate chemical company whereas DuPont is now focused on agricultural products. Chemours is supposed to be free of any liabilities.

It has a vested interest in the outcome, however, given that it now produces C-6, which is the replacement for C-8.

In both C-8 cases that went to trial, the jury awarded compensatory damages but no punitive damages. What does this mean? According to DuPont’s earlier statements, it regards the relatively small punitive damages in the testicular cancer case and the zero punitive damages in the kidney cancer case as an affirmation that it did not act with willful disregard in the West Virginia and Ohio communities where the C-8 was put into the Ohio River.

That chemical then became part of the drinking water supplies in some communities in those states. Despite the juries’ findings on the punitive damages, it still concluded in favor of the plaintiffs. DuPont, however, is appealing the verdict reached last October and it says it will appeal the current one.

But those two cases were among six so-called bellwether cases tried in the U.S. District Court in Southern Ohio to see how juries would feel about this issue. There are 3,500 cases remaining. Given the similar outcomes of the two cases, what will happen now?

DuPont had net sales of $25 billion last year. If its merger with Dow goes through, the combined company will have a total capitalization of $130 billion. Both the plaintiff and defense attorneys have said the likely outcome will now lead to a settlement of “hundreds of millions.”

A lawyer who had once represented DuPont said that the company absolutely does not believe there is a connection between C-8 and the cancers. In fact, C-8 is in nearly every human, in negligible amounts. Where Dupont “screwed up,” the defense lawyer adds, is that it had agreed to let a panel of independent scientists draw conclusions based on “statistics” and not “science.”

DuPont was first sued over this issue in 2001. As part of a settlement that occurred in 2005, both sides agreed that the C-8 chemical would be studied by three scientists. Beginning in 2011 and throughout 2012, those experts concluded that C-8 was “more likely than not” to cause such conditions as ulcerative colitis, kidney cancer, thyroid disease and testicular cancer.

For example, the defense attorney says that the scientists concluded that there is a link between C-8 and high cholesterol. But yet, it found no connection between C-8 and heart disease.

But the two juries have spoken. That should give both sides an indication of how future juries will respond to similar evidence.

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