DuPont asks for rehearing of punitives issue

John O'Brien Apr. 26, 2010, 2:46pm


CHARLESTON, W.Va. (Legal Newsline) - DuPont has asked the West Virginia Supreme Court for a rehearing of the once-$381 million case against it.

Friday, attorneys for DuPont filed a petition that asks the court to consider reducing the punitive damages award by even more than the 40 percent they slashed in March. They also asked to enter a few documents in support of their stance as part of the record.

The justices have reduced the $196 million punitive damages award in the case by 40 percent because defendants cannot be assessed for medical monitoring costs as a part of punitives. The medical monitoring portion of the award is $140 million.

"The court reduced the punitive damages award by 40 percent based on the premise that the circuit court had allocated 40 percent of the punitive damages award to the medical monitoring claims," the petition says.

"But the circuit court made no such allocation. Nothing in the record supports allocating 40 percent of the punitive damages award to the medical monitoring claims.

"The court should instead reduce the punitive damages award by 70 percent because the value of the medical monitoring claim represents 70 percent of the total value of the non-punitive recovery."

The class action lawsuit alleges DuPont released arsenic, cadmium and lead into the environment around a smelter in Harrison County.

The justices remanded the case and ordered a new trial to determine if the case was filed in a timely manner. DuPont also argues that the court should order a trial for each member of the class.

When a class member had the requisite knowledge to trigger the statute of limitations is plaintiff-specific, DuPont claims.

After the justices reduced the punitives award, another $20 million was trimmed from the balance because DuPont paid for cleanup at the 60-acre industrial smelter site.

Ed Hill, an attorney for the plaintiffs, responded to DuPont's move. He said it is a stall tactic.

"DuPont has harshly criticized the West Virginia Supreme Court; its representatives have harshly criticized the the trial court, Judge (Thomas) Bedell; and they have attempted to demonize the jury that returned a large verdict against DuPont for its reprehensible conduct," said Hill, of Charleston's Hill Peterson Carper Bee & Deitzler.

"That reprehensible conduct is spelled out in the Supreme Court's 173-page majority opinion which took one year to carefully and thoughtfully prepare. Now, DuPont wants to delay this matter as long as possible, by filing a Motion to Reconsider; and undoubtedly, Dupont will find more ways to attempt to delay compensating and paying the individuals who have suffered from its bad conduct."

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