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.
According to its press release, DuPont will appeal the verdict based on “many errors that deprived the company of a fair trial.” Other than DuPont’s assertion, there is no way of knowing whether meritorious appealable issues will present themselves. Assuming there are, there is no guarantee that the Supreme Court of Appeals will agree to review the verdict, but with only one level of state appellate review available and in view of the amount, I think the Court will accept DuPont’s appeal.
As A. T. Massey Coal Company has learned, post-judgment interest has to be considered in the calculation of what the verdict costs the company ultimately. Hopefully this case will not take the tortured path that Massey’s appeal followed, but even a year or two of post-judgment interest on a $400-500 million verdict is substantial.
One other point made by the AP story. After the trial was over yesterday, DuPont filed 351 documents that it recently discovered, and which the plaintiffs’ counsel claimed would have been relevant to the plaintiffs’ case. The plaintiffs moved for sanctions against DuPont, but Judge Bedell did not rule a ruling immediately. If he concludes that the documents are relevant and should have been discovered and produced at an earlier time so that the plaintiffs could use them during their case, the sanction could be substantial.