W.Va. SC stays with original opinion in DuPont case

John O'Brien Jun. 2, 2010, 3:00pm

Chief Justice Robin Davis

CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court will not second-guess its stance on punitive damages in a once-$381 million case against DuPont.

The justices decided Wednesday to reject DuPont's petition for rehearing, which asked the court to further cut punitive damages in a lawsuit involving the alleged contamination of a Harrison County community.

The court had shaved a $196 million punitives award by 40 percent, but DuPont sought to increase that figure to 70 percent.

The opinion said DuPont entered a special master's recommendation of 70 percent too late.

(A)s a result of DuPont's silence during oral argument, it has waived its right to contest the issue of an allocation of punitive damages by the circuit court," the opinion said.

The justices 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. Another $20 million was also taken out.

Medical monitoring costs covered $140 million of the verdict. DuPont is alleged to have released cadmium, arsenic and lead from one of its smelters.

"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," attorneys for DuPont wrote in a petition for rehearing.

"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 justices remanded the case and ordered a new trial to determine if the case was filed in a timely manner. DuPont also argued 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.

Ed Hill, an attorney for the plaintiffs, responded to DuPont's petition for rehearing. 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."

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

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