W.Va. judge: DuPont plaintiffs can enroll in monitoring program

Jessica M. Karmasek Aug. 19, 2011, 10:12am

MORGANTOWN, W.Va. (Legal Newsline) - A group of plaintiffs who settled a personal injury case with DuPont earlier this year can now enroll in a court-administered medical monitoring program, a West Virginia judge ruled this week.

According to The Associated Press, Harrison County Circuit Judge Thomas Bedell issued a ruling in the case Tuesday.

DuPont had argued there is no reason for a person to be monitored if they're already sick.

Bedell, in his ruling, disagreed.

"In seeking medical monitoring, the present personal injury plaintiffs are not attempting to 'have it both ways.' Clear West Virginia precedent dictates that a claim for medical monitoring is a separate cause of action," he wrote.

In January, Bedell approved a $70 million settlement involving the alleged contamination of the Harrison County community of Spelter by the company.

DuPont is alleged to have released cadmium, arsenic and lead from one of its smelters into the community, located 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 then bought Grasselli in 1928 and operated the smelter until 1950. The company eventually repurchased the smelter and worked to clean it up.

Bedell had previously ruled that the retrial of part of the case was to start in March. Last June, the state's Supreme Court of Appeals rejected 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.

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.

However, after considering the "substantial amount of risk and expense" of going to trial again, the parties reached a settlement.

As part of the $70 million settlement, $4 million was to be made available only for the medical monitoring sub-class of plaintiffs and the money would be deposited into the Qualified Settlement Fund account created solely for that purpose. Also, DuPont was ordered to pay for the cost of a medical monitoring program on a "pay-as-you-go basis" for a period of 30 years.

Lead plaintiff Rebecca Morlock said in May she and her neighbors were still being exposed to chemicals from the plant's site and that they fear illnesses could take years to develop.

The settlement, she argued, did not block the filing of personal injury claims.

"Medical monitoring only tests for latent diseases. It will not treat them," Morlock said. "It is clearly two different things."

The monitoring program is set to begin next month.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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