West Virginia should be wary of plaintiffs lawyers, SC justice warns

John O'Brien Mar. 29, 2010, 5:59pm


CHARLESTON, W.Va. (Legal Newsline) - West Virginia Supreme Court Justice Menis Ketchum recently wrote that the plaintiffs lawyers in a $381 million case against DuPont will harm the state's economy if a medical monitoring law is not abolished or revised.

Ketchum made the comment in a dissenting opinion released Friday, the same day the justices cut a $196 million punitive damages award in half and ordered a new trial to determine if a class action suit against DuPont was filed on time.

DuPont was alleged to have released cadmium, zinc and arsenic from one of its plants in Harrison County. The jury award featured $130 million for medical monitoring costs of uninjured class members.

"If we do not modify or abolish our medical monitoring law, the plaintiffs' lawyers from the DuPont case will wreak enormous economic harm on West Virginia's economy," Ketchum wrote.

"They will collect millions in fees and return to their out-of-state residences leaving the West Virginia economy in shambles. It reminds me of the out-of-state coal barons who raped our coal resources in the early 1900s and used the untaxed money from our coal to live opulent lifestyles in far away states.

"The lawyer fees in the DuPont case, for our new out-of-state coal barons, may be over $100 million."

Ketchum is referring to the Florida firm Levin, Papantonio, Thomas, Mitchell, Eschner & Proctor, the firm that represented Florida in tobacco litigation in the 1990s.

The DuPont verdict was one of three in West Virginia in 2007 that ranked in the top seven nationally.

Ketchum said that anyone who lived in the Kanawha River and Ohio River valleys has been exposed to toxic substances in the air, which is now cleaner because of increased government regulations

"We must rely on government regulation to police the emission of toxic substances, not damage lawsuits of uninjured plaintiffs," Ketchum wrote. "Damage suits by non-diseased and uninjured persons will only drive our remaining factories out of the state."

Ketchum said the law should be modified to require plaintiffs to prove a present physical injury.

"This is only fair. In this case, DuPont will pay $130 million for medical monitoring where no actual harm has occurred. We should not allow an asymptomatic plaintiff to recover damages by way of medical monitoring for the possibility of contracting a disease in the unpredictable future."

Ketchum also says punitive damages should not have been awarded, evidence was improperly allowed during the trial, the plaintiffs' closing arguments "bore no relation to the facts" and excluding evidence of the lead plaintiff's normal blood test was erroneous.

"(W)hile I agree that DuPont is entitled to a new trial on the statute of limitation issue, a new trial on this question alone will hardly make up for the numerous prejudicial errors throughout the trial," Ketchum wrote.

Ketchum noted that the plaintiffs' expert witness, a soil scientist from Texas, had no education in human toxicology. Kirk Brown said the the three chemicals from DuPont's smelter caused cancer.

"The jury trial was held 30 miles from our flagship educational institution, West Virginia University," Ketchum wrote.

"Yet, plaintiffs did not call any of its medical doctors, epidemiologist or toxicologists to research or opine whether the dust from DuPont's smelter caused disease in humans. To the contrary, it is undisputed that no human in the area of the smelter has gotten sick or has had a disease from DuPont's dust during the 100 years of the smelter's existence."

Supreme Court Justices Brent Benjamin and Thomas McHugh recused themselves from the case because their former law firms worked on the case. They were replaced by Taylor Circuit Judge Alan Moats and Mercer Circuit Judge Derek Swope.

Moats wrote the majority opinion with which Ketchum was not on board.

"It is easy to enrage a jury against a large multi-national corporation," Ketchum wrote.

"Nevertheless, our Constitution requires that plaintiffs must prove each of the elements of their case before the case can be submitted to the jury for its consideration - and the plaintiffs simply failed to prove their case."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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