Settlement approved in DuPont case

Jessica M. Karmasek Jan. 4, 2011, 8:35pm

CLARKSBURG, W.Va. (Legal Newsline) - Harrison County Circuit Judge Thomas A. Bedell has approved a $70 million settlement in a case involving DuPont and its alleged contamination of a West Virginia community.

The judge's final order was issued Tuesday.

Bedell had ruled in October that the retrial of part of the case was to start March 7. The trial was to focus on whether the lawsuit was filed in a timely manner.

However, after considering the "substantial amount of risk and expense" of going to trial again, the parties reached a settlement, the judge wrote in his most recent order.

DuPont is alleged to have released cadmium, arsenic and lead from one of its smelters into the community of Spelter, just north of Clarksburg.

The site was originally a DuPont gunpowder mill that opened in 1899. After the mill burned down, Grasselli Chemical Co. built a zinc smelter and a company town. DuPont bought Grasselli in 1928 and operated the smelter until 1950. The company eventually repurchased the smelter and worked to clean it up.

In June, the state's Supreme Court of Appeals decided to reject DuPont's petition for rehearing, which asked the Court to further cut punitive damages.

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

In their June opinion, the justices said DuPont entered a special master's recommendation of 70 percent too late. They remanded the case and ordered a new trial to determine if the case was filed in a timely manner.

According to Tuesday's order, the terms of the settlement include:

- Sixty-six million dollars of the $70 million will be made available to the plaintiffs for purposes of paying for remediation services and attorneys fees;

- The remaining $4 million will be made available only for the medical monitoring sub-class of plaintiffs and the money will be deposited into the Qualified Settlement Fund account created solely for that purpose;

- DuPont also is ordered to pay for the cost of a medical monitoring program on a "pay-as-you-go basis" for a period of 30 years;

- The company is further ordered to pay fees incurred by the guardian ad litem in the case, which was determined to be $6,250; and

- Finally, DuPont is ordered to pay the court costs associated with the case, in the amount of $55,313.89. Bedell, in his order, wrote that figure represents "the actual out-of-pocket expenses that have been borne by the citizens of Harrison County to date."

As to the amount of attorney's fees and costs to be awarded, that amount remains to be determined. The court will make a determination at a later date and enter an order directing a disbursement from the $66 million, according to the order.

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