W.Va. justices to reconsider DuPont verdict

By John O'Brien | Jun 1, 2010

Chief Justice Robin Davis

CHARLESTON, W.Va. (Legal Newsline) - The justices of the West Virginia Supreme Court are holding a rehearing conference Wednesday to discuss their rulings in a once-$381 million verdict against DuPont.

Their rulings upheld a $140 million medical monitoring award but slashed punitive damages in half in case involving the alleged exposure to cadmium, arsenic and lead DuPont has caused a Harrison County community.

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. Another $20 million was also taken out.

"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 wrote.

"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 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.

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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