September 23rd, 2015|
The first test case that could help resolve more than 3,500 personal injury and 37 wrongful death claims against the DuPont Chemical Company began last week in federal court in Columbus, Ohio.
Jurors in Columbus began hearing the case of 59-year-old Carla Bartlett, who developed kidney cancer in 1997 from drinking C8-contaminated water. Bartlett’s is one of six bellwether cases expected to guide attorneys on both sides of the courtroom on how the rest of the claims will proceed.
The suits allege that DuPont knew about the health risks posed by a chemical produced at its Washington Works plant near Parkersburg, West Virginia for decades, all the while continuing to dump this chemical into the adjacent Ohio River and allowing it to contaminate the water supply of some 80,000 people in Ohio and West Virginia.
C8, or perfluorooctanic acid, is the chemical in question. It is used to make Telfon and other water- and oil-repellent products. Owing to its very stable chemical composition, C8 persists indefinitely in the environment. Its use has proliferated globally since the 1950s when its practical application in non-stick cookware was discovered. According to a 2007 analysis of data by the Centers for Disease Control (CDC), trace levels of C8 exist in the blood of 99.7 percent of Americans.
Following an extensive epidemiological study of residents in the vicinity of the Washington Works plant, as well as several other studies, C8 exposure levels were linked in 2012 to these six medical conditions:
- Testicular cancer
- Kidney cancer
- Thyroid disease
- High cholesterol
- Ulcerative colitis – a form of bowel disease
- Pregnancy-induced hypertension – which may cause seizures, kidney failure, miscarriage, and birth defects
What did DuPont know?
DuPont’s defense is that it did not realize that C8 posed a health risk at the time that Bartlett and the other plaintiffs were exposed. However, hundreds of internal company documents demonstrate that DuPont employees, including top executives, had known of the health problems associated with C8, since its introduction to the market.
Documents suggest an organized, concerted effort by DuPont to deceive the public and its own plant workers of these problems.
In the late 1970s, an increasing number of C8 studies in animal test subjects showed a clear relationship between exposure to the chemical and adverse health consequences. DuPont medical staff began reviewing medical records and tracking a small group of pregnant employees working with C8. This research found one in eight babies born to these women had birth defects; DuPont filed this study as confidential and quietly moved all women out of work areas where they might be exposed to C8.
At the same time that DuPont was coming to terms with occupational health risks at the Washington Works plant, it was also discreetly collecting water samples from the surrounding region to test for C8 contamination. This early water testing confirmed elevated levels of the chemical outside the plant.
Testifying as an expert witness in the Carla Bartlett case on September 16, epidemiologist Dr. Michael Siegel described how DuPont drafted standby press releases as early as 1984 in the event that the company decided to go public with its findings on C8 – or if they were otherwise leaked. These press releases reflect a growing sense of anxiety about the company’s potential liability stemming from the health risks posed by C8 in its West Virginia plant workers, as well as among members of the general public.
In May 1984, executives convened at DuPont corporate headquarters to consider “the C8 issue.” They took into account the perspectives of various divisions, including legal and medical departments, which they predicted “will likely take a position of total elimination,” according to meeting records. DuPont executives considered possible measures to reduce C8 emissions at the company’s plants, including installing scrubbers to reduce airborne emissions. However, these initiatives were abandoned:
“Liability was further defined as the incremental liability from this point on if we do nothing as we are already liable for the past 32 years of operation…From a broader corporate viewpoint the costs are small.”
A drafted press release from 1984 foresaw a hypothetical reporter’s question on whether DuPont’s decision not to invest in a system to reduce C8 emissions was based on money. This internal document instructed the company respondent to answer with a terse “No.”
Internal DuPont documents stretching back to the 1970s show that the company was well aware of the dangers posed by C8.
Not only did they choose not to inform the public and to bury evidence of C8 health risks, but they also doubled down on C8 production at the Washington Works plant. DuPont’s use and emissions of C8 only increased, peaking in 1999. It was only around 2000, when DuPont received its first lawsuits over C8 contamination, that residents around the West Virginia plant started to become aware of the danger they had been living with for nearly half a century.
DuPont’s Collusion with Government Regulators
Another central argument in DuPont’s defense is that the company was merely following the existing law on C8, and that if the chemical were truly dangerous, government agencies would have regulated it.
DuPont claimed it was acting within its rights to discharge C8 directly into the atmosphere and dispose of the chemical into the Ohio River and unlined ponds and landfills, where it filtered down to the water table. This argument assumes that government regulators properly fulfilled their mandate as a neutral party to protect public health and safety. The hollowness of these claims stands out next to the evidence of DuPont’s campaign to effectively neuter regulatory action.
Unlike the Food and Drug Administration (FDA), which is charged with regulating prescription drugs, the EPA lacks the legal authority to prevent a substance or chemical from coming to market before its potential human health risks are known. Even when the dangers of a chemical have been established, the EPA is limited in what it can require of industry, and tends to rely upon voluntary concessions by companies under its supervision. The EPA is reliant on the discretion of manufacturers to provide data used to craft its regulatory policy.
To illustrate: most of the animal studies with C8 conducted during the 1970s and 1980s were reported to the EPA; however, DuPont’s investigations into occupational and environmental exposure hazards were designated confidential, and thus, were not shared with the agency.
DuPont exploited the weaknesses of federal and state regulators, like the EPA and West Virginia DEP, to purposely diminish their ability to fulfill their public mandate to keep the public safe from a dangerous chemical. And for what? To protect DuPont’s robust profits from liability and negative publicity, regardless of the human cost.
2005 C8 Settlement and Science Panel Findings
Carla Bartlett’s lawsuit and the other pending 3,500 claims stem from a $343 million settlement reached in September 2004 and approved in early 2005, in a class-action lawsuit filed on behalf of 80,000 local residents against DuPont, in which the company accepted that C8 was harmful to human health. As part of the settlement, DuPont agreed to install filtration systems in contaminated water districts and to provide $70 million for a health and education project for local residents. DuPont was not, however, required to pull C8 from the market.
In spite of this settlement, it was far from clear at the time that DuPont would be held fully accountable for its actions. The thousands of people with health problems allegedly caused by C8 could only receive compensation under the settlement if a DuPont-backed research group found that a probable link existed between their diseases and C8. This was particularly problematic because determining these links requires larger pools of data than typically can be collected from a single rural community.
Harry Deitzler, a Parkersburg attorney who serves as a local liaison to the plaintiffs, sums up the problem:
“I knew the reason DuPont settled the case and agreed to assign this panel of epidemiologists was because they didn’t think they were ever in this lifetime going to find links.”
The plaintiffs ended up finding a solution to this problem by using the $70 million health and education fund created by the settlement to sponsor an epidemiological study that ultimately managed to interview and collect blood samples from 69,000 local residents, or 80 percent of the people living in affected water districts.
A separate group created by the 2005 settlement, the C8 Science Panel, used the results of this health study along with its own studies, which have been published in peer-reviewed scientific and medical journals, to develop independent conclusions on the effect of C8 exposure on human health. After seven years and $33 million spent, the C8 Science Panel released its complete findings in 2012.
This panel found a link between C8 exposure and testicular cancer, kidney cancer, thyroid disease, high cholesterol, ulcerative colitis, and pregnancy-induced hypertension.
Under the terms of the 2005 settlement, DuPont cannot dispute the findings of this panel. In Carla Bartlett’s case, while DuPont admits that C8 exposure can cause kidney cancer, the company denies that it was the specific cause of Bartlett’s particular case of kidney cancer. How the federal jury decides this case will set a precedent for the other claims.
The lawsuits currently being brought against DuPont have the potential to become a watershed moment in how this country regulates chemical substances. DuPont and other C8 manufacturers knew of the adverse health effects linked to their product for many years before informing the public. The potential costs in monetary terms and human health are enormous for consumers, while huge sums of money are on the line for the companies depending on the outcomes of litigation and regulators’ decisions.
DuPont did not give consumers a choice. The people living in West Virginia and Ohio, as well as the 99.7 percent of Americans whose blood contains C8, had no option but to use the water coming from their taps, putting their trust in the system that this water was safe.
Cory Watson Attorneys has taken a lead role in the C8 lawsuits. Follow these this link here for more information on our firm’s involvement in the litigation.
If you are interested in finding out more about C8 and DuPont’s cover-up, these two articles should be worth your time:
- “The Teflon Toxin: DuPont and the Chemistry of Deception” (The Intercept)
- “Welcome to Beautiful Parkersburg, West Virginia” (The Huffington Post)