CHARLESTON, W. Va. (Legal Newsline) - Industrial giant DuPont used West Virginia Gov. Joe Manchin's office to skirt limitations concerning its appeal of a $382 million jury verdict, attorneys who sued the company said Wednesday.
Prominent plaintiffs attorney Mike Papantonio says the company coaxed Manchin and the West Virginia Medical Association into filing amicus briefs urging the West Virginia Supreme Court to hear the appeal. Records obtained through a Freedom of Information Act request show that Manchin consulted with DuPont before filing his brief.
Papantonio, of Pensacola, Fla., firm Levin Papantonio Thomas Mitchell Echsner & Proctor, says he will move to strike Manchin's brief.
"It's unforgivable that this governor would side with a corporation, with DuPont, without understanding the intricacies," said Papantonio, who represented the nearly 8,000 plaintiffs who lived in or around Spelter and alleged that DuPont dumped arsenic, cadmium and lead at a nearby plant.
"Nobody from the governor's office came to the trial one day. Nobody from the governor's office came to see what happened. Nobody from the governor's office reviewed any documents. Nobody from the governor's office made a call to the people who were affected.
"Nobody from the governor's office read the transcripts. The governor's office simply became a puppet for DuPont. That's not uncommon for DuPont -- that's how they operate."
Manchin's 12-page brief says West Virginia's Supreme Court must review the case, as it is "critical to the fair and rational imposition of punitive damages."
The jury awarded the plaintiffs more than $196 million in punitive damages.
The brief adds that the U.S. Supreme Court "has recognized that detailed appellate review of punitive awards serves as the foundation of the procedural rights afforded to litigants."
Thomas Sager, DuPont's general counsel, says the company did nothing wrong in seeking input from Manchin.
"Parties commonly request such briefs from those that may have an interest in the issues presented by an appeal," Sager said.
"Like any person or organization, DuPont is entitled to raise issues of public concern with State officials. The First Amendment protects and encourages such communications. The governor made his own independent judgment that the issues in this case are of public significance, and filed his own brief."
While Manchin's brief focuses on issues of due process, Papantonio says it is his clients' right to be treated fairly that has been violated now, thanks to Manchin.
"The plaintiffs should have the same right the defendant has," he said. "The defendants have gained the system.
"You can go and search forever, and you won't find a Governor that mixes public policy with judicial review. If this type of argument is made, it is typically made by the attorney general's office. It's like mixing apples and oranges."
Manchin filed his brief June 24, and records show that he had met with a DuPont official and attorney three weeks earlier. Also, DuPont lawyers gave Manchin two draft briefs that made many of the same arguments he made, and he spoke on the phone in Nov. 2007, less than a month after the Harrison County Circuit Court verdict, with DuPont's chief executive, the New York Times reported.
DuPont did not immediately return a message seeking comment.
Manchin's counsel, Carte Goodwin, told The New York Times, "The governor neither opines on the underlying merits of the case nor argues for the reversal or modification of the jury's verdict."
Papantonio called Manchin's involvement in the case "an ethical no-no."
"Even had the governor not met with the president of DuPont, not met with the chief counsel of DuPont and have people inside his own office related to DuPont business, (filing the brief) would have been suspect anyway," he said.
"Add all those factors in, and the level of scrutiny should be increased."
Manchin's executive secretary, Peggy Ong, formerly worked for DuPont, and Goodwin's former firm consulted the company on the case, The Times reported.
Goodwin claimed the firm, Goodwin and Goodwin, played a small role, and Ong is not involved in policy making.
The state Supreme Court recently declined to hear the appeal of Chesapeake Energy and NiSource, which were fighting a $404 million Roane County verdict. It also recently declined to hear the appeal of a $220 Brooke County verdict against Massey Energy.
West Virginia has no intermediate appellate courts. In a footnote, Manchin said the DuPont case could be used to give the state's circuit court system some advice on how to handle large punitive damage awards.
Of the seven largest civil verdicts in the country last year, three of them occurred in West Virginia. Forbes magazine recently ranked the state as the least business-friendly, while neighbor Virginia was ranked as the friendliest.
"West Virginia is virtually the only state that does not provide an automatic full appellate review of a punitive damages judgment," Sager said. "DuPont is simply seeking a full and fair review of the trial court outcome, which the company believes is infected by serious legal errors.
"The plaintiffs are trying to deny DuPont its day in court. If the plaintiffs were confident that their verdict was supported by the facts and the law, they would not be so worried about the West Virginia Supreme Court providing a full appeal."
As part of the judgment, DuPont must also provide medical monitoring for those who live near the Spelter plant.
Manchin, a Democrat, is running for re-election this year against former state Sen. Russ Weeks.
"A West Virginia jury, exercising the sovereign power of the State, has punished (DuPont) severely," Manchin's brief says.
"Petitioner now seeks what due process requires -- a meaningful, adequate and de novo review of its nine-figure punishment. Such an exacting and fresh examination of the record -- even if affirmance is warranted -- should be provided."
From Legal Newsline: Reach John O'Brien by e-mail at firstname.lastname@example.org.