I have not written since early last month — and have no excuse to offer for my dereliction — but thanks to a much-anticipated decision released this afternoon by the Supreme Court of Appeals of West Virginia, there is plenty to discuss.
The Court has issued its opinion in Perrine v. E.I. du Pont de Nemours and Co., Nos. 34333, 34334, and 34335 (March 26, 2010), the class-action medical-monitoring action filed by thousands of Harrison County, West Virginia residents who claimed that their health and property were damaged by a zinc smelter operated by DuPont.
Circuit Judge Alan Moats, sitting by assignment, wrote the majority opinion, which is 179 pages and has a table of contents. In a nutshell, the Court reversed the circuit court’s summary judgment in favor of the plaintiffs on the statute of limitations, and remanded the case to the circuit court for another trial limited to that issue. If the plaintiffs prevail, "the remaining issues pertaining to liability and compensatory relief are affirmed[.]" Those issues would include compensatory damages of $55.5 million for property damage and $130 million for medical monitoring.
But the Court reversed the punitive damages award of $196.2 million on the grounds that they are not proper in a medical monitoring action, and so reduced them by 40%. The Court also found that mitigating circumstances justified a reduction in the punitive damages award and remanded the case on that issue. After the Court issues its mandate, the plaintiffs have 30 days to decide whether they will accept a punitive damages remittitur of $20 million, resulting in a total punitive damages award of $97.72 million, or submit to a new trial on punitive damages only.
The Court also affirmed the trial court’s rulings that DuPont owes indemnification to a former owner of the smelter, and that certain plaintiffs’ property-damage claims are barred by the statute of limitations.
The opinion was joined in its entirety by Circuit Judge Derek Swope, also sitting by assignment. Each of the three other justices, Chief Justice Robin Davis and Justice Menis Ketchum and Justice Margaret Workman concurred, in part, and dissented, in part, in the decision.
I will write a longer post once I’ve had an opportunity to study all of the opinions.