West Virginia Business Litigation Lawyer & Attorney : Law Office of Jeffrey V. Mehalic : Charleston, Huntington, Parkersburg

The Supreme Court of Appeals of West Virginia voted 4-1 yesterday to grant DuPont’s petitions for appeal in Perrine v. DuPont, the medical monitoring class action that resulted in a verdict of nearly $400 million.  I reviewed the issues on appeal in this post last month.

On Wednesday, DuPont presented its appeals from the verdict and from the circuit court’s order requiring it to indemnify T. L. Diamond, a former owner of the zinc smelter site.  Ken Ward, Jr. wrote about the argument in yesterday's Charleston Gazette. 

In its argument, DuPont’s counsel questioned the adequacy of the review provided by the Supreme Court of Appeals in light of recent United States Supreme Court decisions, which was also the focus of West Virginia Governor Joe Manchin’s amicus brief.

Justice Robin Davis pointed out that Article VIII, Section 4 of the West Virginia Constitution provides that:  

A writ of error, supersedeas or appeal shall be allowed by the supreme court of appeals, or a justice thereof, only upon a petition assigning error in the judgment or proceedings of a court and then only after the court, or a justice thereof, shall have examined the record and is satisfied that there probably is error in the record, or that it presents a point proper for the consideration of the court.

She suggested that the Court's approach simply adheres to this standard, and did not seem convinced that adequate appellate review of a punitive damages award, as defined by the United States Supreme Court, required the Supreme Court of Appeals to accept a party’s appeal, as DuPont and Governor Manchin contended.

By contrast, Justice Larry Starcher announced that without making any judgment on the merits of DuPont’s appeal, he would vote to grant because of his belief that the Court automatically should review any punitive damages award.

Justice Davis was the only vote against DuPont’s appeals.  Senior Status Justice Thomas McHugh recused himself because his former firm represents DuPont and Justice Brent Benjamin recused himself because his former firm represents T. L. Diamond.  Circuit Court Judges Alan Moats and Derek Swope, respectively, were appointed to replace them.

On September 9. the plaintiffs presented their appeal from the circuit court's order granting DuPont's summary judgment motion as to class composition.  The Court granted their petition 3-1 (Justice Davis voted not to grant) and consolidated the plaintiffs’ appeal with DuPont’s.

Curt Cutting at the California Punitive Damages blog wrote about the Court's votes in this post.

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    Here is the brief filed last week by the plaintiffs in opposition to the amicus brief filed by West Virginia Governor Joe Manchin.  The plaintiffs' brief attaches as exhibits documents received from the Governor's office through a Freedom of Information Act request, which the plaintiffs contend show an inappropriate relationship between the Governor and DuPont:

In conclusion, the "Governor's filing" is, in truth, the product of an orchestrated scheme by DuPont to further argue its position on the issue of punitive damages from a respected and supposed neutral party when in reality the filing is a feigned pleading that parrots the arguments that DuPont has put forth in its petition for appeal.

    As I discussed in my post earlier today, Manchin's brief asks the Supreme Court of Appeals of West Virginia to grant DuPont's petition for appeal in order to address the question of the level of appellate review required by the Due Process Clause of the Fourteenth Amendment for a punitive damages award. 

    In other words, does DuPont receive due process if the Supreme Court of Appeals considers DuPont's petition for appeal from the award (among other issues), but rejects it, thus precluding any further appellate review in West Virginia?   Or does DuPont's appeal have to be considered on its merits, even if such review results in an affirmance?

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    I had intended to write this post a few weeks ago, and because the issues have been back in the news recently, I have another chance to discuss them.

    Last year, a Harrison County, West Virginia jury returned a verdict for $196.2 million in punitive damages against DuPont in a class action with more than 7,000 members who sought damages for medical monitoring and property damage claims, as a result of DuPont's operation of a zinc smelter that released harmful quantities of cadmium, arsenic, and lead.  The jury earlier had awarded $55.5 million for the plaintiffs’ property damage claims and found that that a medical monitoring program was appropriate, which will cost approximately $130 million.  Here is my post dealing with the trial court’s rulings on the parties’ post-trial motions.

    Since then, the parties have prosecuted appeals from the court’s rulings. I’ll discuss those appeals, but the filings that have been getting attention are two amicus briefs filed in the case.

    In June, West Virginia Governor Joe Manchin filed an amicus brief in support of DuPont’s petition for appeal from the jury’s verdict: “Because the disposition of cases involving punitive damages at the petition stage raises significant due process concerns, the Governor respectfully requests that this Court grant the petition to clarify the law regarding the constitutionally mandated appellate review of punitive damages.”  Here is the Governor’s brief, courtesy of his counsel, Carte Goodwin.

    You will note that Manchin is careful not to advocate a particular result, even as he asks the Court to accept DuPont’s appeal.  His purpose in doing so, he maintains, is that because the United States Supreme Court held in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), that the Fourteenth Amendment’s Due Process Clause guarantees the right to de novo appellate review of a punitive damages award, DuPont’s right to such review may be compromised, if not violated, by the Supreme Court of Appeals of West Virginia’s “mere” consideration of DuPont’s petition for appeal. 

Consequently, the Governor is interested in one of the central issues highlighted by this case and other petitions seeking review of punitive damages awards: What sort of appellate review is required by the Due Process Clause?

    It is the “this case and other petitions seeking review of punitive damages awards” that provides the context for Manchin's brief.  In May, the Supreme Court of Appeals refused petitions for appeal in two widely-publicized cases where juries had returned substantial verdicts: the natural gas royalty class action against Columbia Natural Resources, LLC and other defendants, where a jury returned a verdict for about $404 million, including $270 million in punitive damages, and a breach of contract case against Massey Energy Company, where a jury returned a verdict of $219 million, including $100 million in punitive damages.  Here is my post about the Court’s action.

    Manchin does not want DuPont’s petition for appeal to become the third one rejected by the Court without what he and DuPont regard as adequate appellate review, which they hope would result in a reversal of the jury's verdict.  The problem from their perspective, however, is Rule 7 of the West Virginia Rules of Appellate Procedure, which provides that the Court may refuse or grant a petition for appeal, and that a refusal precludes any further appellate review in West Virginia. 

    Just as Governor Manchin tries not to advocate a particular outcome – even though the relief he requests benefits DuPont more than the plaintiffs -- he is careful not to criticize the Supreme Court of Appeals too pointedly for its procedure for considering appeals.  But he does makes this observation:

More to the point, it is unclear whether this Court’s periodic practice of determining the validity of a punitive damages award solely through consideration of a petition for appeal could withstand constitutional scrutiny today.  Unfortunately, the United States Supreme Court has not explicitly addressed whether this aspect of our process provides litigants with “meaningful and adequate” appellate review.

(Emphasis in original.)

The Governor expands on the point in footnote 4:

This is understandable – and the concern especially pronounced – given the unique structure of West Virginia courts, where no civil litigant is provided an appeal as a matter of right and – lacking any intermediate appellate courts – this Court is the only appellate tribunal that can provide the level of review mandated by State Farm.  And yet, this Court may grant or refuse a petition for appeal in its sole discretion.  See Rule 7, West Virginia Rules of Appellate Procedure.  By contrast, forty-eight States offer civil litigants at least one appeal as a matter of right, either to an intermediate appellate court or to the State’s highest court….

    Not surprisingly, the plaintiffs are asking the Supreme Court to ignore Manchin's brief, according to this article by Ken Ward, Jr. in last Thursday’s Charleston Gazette.  Ward’s article referred in turn to this article by Ian Urbina in last Wednesday’s New York Times, which detailed contacts between Manchin and officials from DuPont and said that Manchin asked DuPont to provide a draft brief to his office, which would render his assertion that he is not advocating for a particular party less than credible.  Urbina quoted well-known legal ethicist and New York University law professor Stephen Gillers as saying that Manchin’s action was the first he could find where a state’s governor, as opposed to its attorney general, took such action.

    Last week, the plaintiffs filed a brief, also referred to in Ward’s article, in which they asked the Court not to consider Manchin’s brief.  I don’t have the plaintiffs’ brief yet, but as soon as I get it, I’ll upload it. 

    A second amicus brief that has created some controversy, although not as much as Governor Manchin’s, was filed by the West Virginia State Medical Association in support of DuPont’s petition for appeal.  Here is the WVSMA amicus brief.

    The WVSMA’s position is that the medical monitoring plan proposed by the plaintiffs and accepted by the trial court will cause more incidents of cancer than it will detect:

Although WVSMA is also concerned about the arbitrary nature of the large punitive damages award and other issues in this case, this brief is limited to the public health issues raised by the medical monitoring plan ordered by the Circuit Court.  WVSMA is concerned that this plan places the plaintiff class in unnecessary danger by approving biennial computed tomography (“CT”) scans that will likely cause more cancer than they will ever find.  Review is warranted because the trial court failed to appropriately weigh the health risks involved in the medical monitoring program when it considered whether the proposed testing was ‘reasonably necessary.”

Specifically, the WVSMA argues that as many as 70 class members could develop cancer if they fully participate in the screening program for 40 years, while 10 cases of cancer would have been detected by the program. 

    The WVSMA asks that the Court accept DuPont’s petition in order to determine whether all of the tests in the proposed medical monitoring program are “reasonably necessary,” meaning whether a qualified physician would prescribe them.

    Regarding the underlying issues, the plaintiffs are appealing the trial court’s grant of summary judgment in the defendants’ favor, which found that releases and easements executed in the 1920s in favor of an earlier owner of the smelter immunized it against certain plaintiffs’ claims.  Here are the plaintiffs’ petition for appeal, which is scheduled to be considered by the Supreme Court on September 9, and DuPont's response in opposition. 

    DuPont is prosecuting two appeals.  One addresses the size and nature of the jury's verdicts and rulings made by the trial court before, during, and after the trial.  Here is DuPont's petition for appeal.  

    In the other appeal, DuPont appeals the trial court's order that required it to indemnify T. L. Diamond and Company for more than $800,000 for costs and expenses that Diamond incurred in connection with the plaintiffs' medical monitoring and property damage claims, based on a contract between DuPont and Diamond.  Here are DuPont's petition on that issue, and the plaintiffs' response in opposition.   Neither of DuPont's appeals has been scheduled on a motion docket yet.

 

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    Last year, a jury returned a verdict for $196.2 million in punitive damages against DuPont in the final phase of a trial in which 7,000 Harrison County, West Virginia residents claimed that DuPont injured them and contaminated their property by releasing substances including cadmium, arsenic, and lead at its zinc smelting site.  The jury also awarded $55.5 million for the plaintiffs’ property damage claims and approved a medical monitoring program.

    DuPont’s efforts to overturn the jury’s determinations through post-trial motions have not been successful.  Here are the relevant orders entered by the Circuit Court of Harrison County on February 25:

Final Order Regarding the Scope, Duration and Cost of the Medical Monitoring Plan

Order Regarding Plaintiffs’ Counsels’ Fees and Litigation Expenses and Class Representatives Award and Incentive Payments

Order Denying Dupont’s Motion for Judgment as a Matter of Law, or, in the Alternative, to Decertify the Class

Order Denying Motion for New Trial

Order Denying Dupont’s Motion to Vacate or Reduce Punitive Damages Award under Garnes v. Fleming Landfill

    The plaintiffs presented evidence regarding the medical monitoring plan at a hearing in January, and offered the testimony of a specialist in occupational and environmental medicine, a certified life care planner, and a forensic economist.  DuPont offered the testimony of a certified public accountant, who had expertise in projecting future medical costs.  But as the following footnote in the medical monitoring order makes painfully clear, DuPont would have been better off without any expert testimony:

Of the plethera [sic] of witnesses that testified at the scores of hearings and trial in this matter, the Court finds Mr. Meneberg [DuPont’s expert] to be the least credible of all. It is clear that if one has the money, Mr. Meneberg will provide an opinion whether it is within his field of expertise or not and whether there is any factual or professional basis for the opinion or not. In the sixteen years as a sitting trial judge, Mr. Meneberg is the biggest ‘hack’ to have testified before this Court. 

    The order approving the medical monitoring plan provides that the plan will be reviewed every five years, will have a duration of 40 years (during which the circuit court will retain jurisdiction), will cost $129,625,819.00, and will be funded on a “pay as you go” approach, which had been advocated by DuPont, rather than on the fully-funded basis that the plaintiffs had wanted.  Under the “pay as you go” approach, DuPont will make payments, which will be escrowed, then disbursed and replenished, as the plan proceeds, depending upon such factors as participation and cost, rather than pay for the entire cost of the plan at the outset.

    The circuit court also awarded the plaintiffs attorneys’ fees of $127,108,410.64 and expenses of $7,904,646.65 from the common fund of $381,363,341.25 (which consists of the total of the cost of the medical monitoring plan, the punitive damages award, and the property damage award).  Also, in its order, the circuit court denied the class representatives’ motion for incentive payments to each one (there are 10) of $75,000.00 for their “cooperation and assistance,” which would have come from the common fund.  However, the Associated Press reported earlier this month that, at the plaintiffs' counsel's request, the circuit court reconsidered and approved an incentive payment of $50,000 to each class representative, with the funds to be paid from the attorneys’ fees rather than the common fund.

    DuPont is appealing the verdicts and the post-trial rulings, according to this statement from its general counsel, Stacey J. Mobley.  I will confirm the status of DuPont’s petition for appeal, and post the petition and the plaintiffs’ response as soon as they are forwarded to the Supreme Court of Appeals.  The Supreme Court’s Spring Term ends on June 26, which means that the appeal, if granted, will not be argued and decided until the Fall Term.

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    In an order entered today, the Supreme Court of the United States rejected a request by tobacco companies to get involved in a mass tort action pending in the Circuit Court of Ohio County, West Virginia.   Philip Morris USA, Inc. v. Accord, No. 07-860.

    The tobacco companies had filed a petition for a writ of certiorari from the Supreme Court of Appeals of West Virginia’s November 7, 2007 ruling that denied their request for a writ of prohibition to prohibit the circuit court from proceeding on March 18 with the first phase of a consolidated mass trial.

   The tobacco companies objected to the circuit court's case management plan, and specifically its use of  “reverse bifurcation,” whereby the jury will determine whether, as a group, the plaintiffs are entitled to punitive damages before there has been a finding that any individual plaintiff is entitled to compensation.  A different jury will then determine issues unique to each plaintiff.   Reverse bifurcation has been used in other West Virginia mass tort cases, including asbestos and Fen-Phen litigation.

    Here are The Wall Street Journal’s article on the effect of the Supreme Court’s decision and a post from earlier this month at Akin Gump’s SCOTUSBLOG, which reviewed several petitions scheduled to be reviewed by the Court on February 15, and included PDFs of the parties’ briefs and the amicus briefs.  Philip Morris USA, Inc. is the last petition listed.

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    The Supreme Court of Appeals issued its decision on November 15 in State of West Virginia ex rel. Chemtall, Inc. v, Madden, 2007 WL 4098937 (W.Va.), which was argued at the beginning of the term.  Here is my post regarding the argument. This opinion is the third one from the Supreme Court regarding this case, which is significant, given that the case has not gone to trial yet, even though it was filed in 2003.

    The per curiam opinion addressed the petition for a writ of prohibition and/or mandamus filed by the defendant suppliers and/or manufacturers of polyacrylamide against the Circuit Court of Marshall County regarding two of its orders.  The first order permitted water treatment workers to intervene in the action based on their exposure to polyacrylamide, which is the same exposure claimed by the class of former coal preparation plant workers.  The second order permitted the use of a punitive damages multiplier for the plaintiffs’ medical monitoring claims and allowed for the common adjudication of claims that arose under West Virginia and Pennsylvania’s medical monitoring claims.

    In this decision, the Court denied the defendants’ requested relief.  First, the Court held that its prior decision in Stern v. Chemtall, Inc., 617 S.E.2d 876 (W.Va. 2005), was intended to permit the intervention of water treatment workers in the action.  The Court noted that there were facts common to both groups of workers, such as exposure to the same chemical and the risk of contracting the same diseases, which made intervention appropriate.  The Court also noted that the circuit court had not “indicated how it intends to manage any differences with regard to these two groups of plaintiffs[,]” which would make a ruling premature.

    As to the issue of punitive damages, the petitioners challenged the circuit court’s proposed trial plan as violating their due process rights because a jury would not consider a plaintiff’s individualized harm in assessing the damages and would not first find actual liability against any defendant. 

    The Court emphasized that the circuit court’s trial plan did not guarantee a result contrary to Phillip Morris USA v. Williams, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007), which addressed whether the United States’ Constitution’s Due Process Clause permits a jury to award punitive damages based in part on its desire to punish the defendant for harming persons who are not before the court.  The Court again emphasized that as no trial had taken place, “[n]o evidence has been adduced, none of the petitioners have been found liable for any tortious conduct, and punitive damages have not been assessed. Therefore, a decision on the constitutionality of punitive damages at this point would amount to nothing more than an exercise in speculation.”

    The Court also declined to rule on the petitioners’ claim that punitive damages are not available in cases where the plaintiffs sought only medical monitoring damages, expressing its belief that “appellate review of this issue is better left to the review of a verdict after complete development of all the facts and testimony and after a trial of all the issues."

    Likewise, in addressing the petitioners’ argument about the adjudication of claims arising under West Virginia and Pennsylvania law, the Court reaffirmed the circuit court’s discretion to manage its docket, such that “[w]e believe that the circuit court below is fully capable of formulating procedures that effectively address any differences in West Virginia and Pennsylvania law.”

    In the final paragraph of the opinion, the Court makes clear its exasperation with the parties: “We hope the litigants understand and appreciate the difficulty this Court faces in trying to decide so many issues pre-trial, in the limited context of extraordinary remedies, and in the absence of a meaningful, fully-developed factual record.  Accordingly, we trust the lawyers and parties will now focus vigorously on letting these cases be tried by a trial court.  Having disposed of the issues raised herein, we are confident that the parties can now proceed to trial without further delay and without the necessity of additional guidance from this Court.”

    In other words, don’t come back unless you've tried the case.

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    Yesterday the jury has returned a verdict for punitive damages of $196.2 million against DuPont in the fourth and final phase of the class action trial in Harrison County, West Virginia, in which 7,000 area residents claim that DuPont injured them and contaminated their property by releasing substances including, cadmium, arsenic, and lead at its zinc smelting site.  Here is the Associated Press story on the verdict in the Saturday Gazette-Mail, as well as a statement issued by DuPont regarding the verdict.

    The AP story says that the damages awards against DuPont total nearly $400 million, but that number is an estimate, at least according to my calculations.  The punitive damages award and the property damage award of $55.5 million are nearly $252 million.  The cost of the medical monitoring program will be decided by Circuit Court Judge Thomas A. Bedell, but the AP says it’s estimated to cost more than $100 million.  Actually, I think it will cost a lot more than $100 million. 

    If every member of the class is entitled to $500 per year for medical monitoring expenses for 40 years, which is not unreasonable, considering that the jury adopted the plaintiffs’ proposal, the cost of the program is $140 million.  Taking into account anticipated increases in the cost of medical services over 40 years, the program could easily cost twice that amount, which means that DuPont is looking at more than $500 million total.  

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    After deliberating for seven hours, the jury yesterday determined that DuPont must pay $55.5 million to clean up houses, trailers, and businesses that were contaminated by DuPont’s operation of a zinc smelting plant, according to this story from Bloomberg.com. 

    The jury’s verdict concludes the third phase of the trial. The final phase, in which the jury will determine whether the class members are entitled to punitive damages, begins today.

    DuPont had set aside $15 million to resolve the plaintiffs’ claims, which obviously will not be enough, assuming that this verdict is affirmed on appeal.  DuPont will have to come up with even more money to pay for the cost of medical monitoring, which the jury approved last week.  Although the jury found that medical monitoring is necessary, Harrison County Circuit Court Judge Thomas A. Bedell will determine the specifics of the program, including its cost.

    The estimated cost of the remediation program came from the plaintiffs.  DuPont took the position that no remediation was necessary and did not present any alternative estimate to the jury.  DuPont’s strategy is understandable, but still carries considerable risk.  Does DuPont argue, as it did here, that no remediation is necessary, which means that if the jury disagrees, it will have only the plaintiffs’ estimated cost as the basis for its verdict?  Or does DuPont present figures showing a lower cost for remediation, and take the chance that the jury will interpret the lower numbers as a tacit admission that some remediation is necessary?  Not an easy decision.

    In some good news for DuPont, the Department of Justice has decided not to pursue criminal charges against it for the use of perfluorooctanoic acid, also known as C8, used in the manufacture of Teflon at DuPont’s Washington Works plant near Parkersburg, West Virginia.  Ken Ward, Jr. writes about the DOJ's decision in this morning’s Charleston Gazette.

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    According to the Associated Press, the jury yesterday determined that DuPont must pay for medical monitoring for 7,000 class members, as a result of its contamination of a zinc smelting plant in Spelter, West Virginia.  The class members, who are residents of Harrison County, allege that their health and property were damaged by DuPont's releases of cadmium, arsenic, and lead at the site.  I have written about the trial on several occasions, most recently yesterday.

    Although the jury apparently adopted the plaintiffs’ proposed plan, which establishes a 40-year voluntary testing program for various cancers and other conditions related to toxic exposures, the Circuit Court will determine the “scope, cost and duration of any medical monitoring plan,” according to DuPont’s spokesman.

    The trial's third phase, which addresses the plaintiffs' property damage claims, begins today.  The last phase, which should start sometime next week, will determine whether the plaintiffs are entitled to punitive damages.

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    The Associated Press reports that this morning, the jury began deliberating the plaintiffs’ medical monitoring claims in the second phase of the class action against DuPont, which is taking place in Harrison County, West Virginia.

    The jury has to determine whether the plaintiffs are entitled to compensation for medical monitoring, and if so, how much.  The plaintiffs have proposed a 40 year medical monitoring plan that would offer voluntary testing for various cancers, including those of the lung, skin, stomach, bladder and kidney, as well as testing for kidney function, cognitive problems and lead poisoning.  The plaintiffs allege that they are at greater risk for such conditions because of pollution and contamination caused by DuPont’s zinc smelting plant in Spelter, West Virginia.

     Last week, in the first phase of the trial, the jury determined that DuPont was liable for the plaintiffs' injuries.  Regardless of the jury’s verdict on medical monitoring, the trial's next phase will address property damages, and the final phase will determine whether the plaintiffs are entitled to punitive damages.

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    Last week, I wrote that the jury had begun its deliberations in the liability phase of the class action trial against DuPont over its alleged contamination of a zinc smelting plant in Spelter, West Virginia, which the plaintiffs alleged injured their health and damaged their property.   Yesterday, the jury determined that DuPont was negligent in dumping various chemicals, including arsenic, cadmium, and lead, at the site.  Here's the story by Associated Press reported Vicki Smith.  Specifically, the jury determined that the site constituted a public and private nuisance and that the pollution at the site illegally trespassed onto private property.  The jury also determined that DuPont was strictly liable for the plaintiffs' exposures. 

    Because the trial is bifurcated, the parties began to present evidence today on damages, starting with the plaintiffs' claims for medical monitoring.  The Charleston Gazette posted this article about the damages phase on its website earlier today.

    DuPont has set aside $15 million to deal with the lawsuit.  Even if the jury doesn't award damages for medical monitoring, the plaintiffs will present evidence on their property damage claims.  Lastly, the jury will determine whether the plaintiffs are entitled to punitive damages.  The liability phase took about three weeks to conclude, but I haven't seen any estimate of how long the damages phase will take.

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    Closing arguments began yesterday in Harrison County Circuit Court in the trial of the class action against DuPont and other defendants, which seeks compensatory damages for medical monitoring and property damage claims, and punitive damages.  Here are articles on the trial from Business Week's website and the Associated Press.

    The closing arguments represent the conclusion of the first phase of the trial, which addresses the liability of the defendants.  If the jury determines that the defendants are liable, then the jury will determine whether to award damages for medical monitoring, and if so, how much.  In the third phase, the jury will determine whether to award property damages, and in the fourth phase, the jury will determine whether to award punitive damages. 

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    Trial started this week in a class action against DuPont and other defendants in the Circuit Court of Harrison County (Clarksburg), West Virginia.  Perrine, et al. v. E. I. du Pont  de Nemours, Inc., et al., Civil Action No. 04-C-296-2.  There are approximately 7,000 class members, who seek damages for medical monitoring, property damage, and punitive damages.  Here is the class action website.

    The plaintiffs allege that a zinc smelting plan located at Spelter, West Virginia contaminated their property and released hazardous substances, including arsenic, cadmium, and lead, into the atmosphere.  The Circuit Court certified a class on September 14, 2006.  Its order describes the geographic area involved in the litigation. 

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