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Sunday, January 26, 2020

DuPont: Lawsuit over discharges into Cape Fear River 'rests on a mistaken premise'

By John Breslin | Apr 30, 2018

General court 07

GREENVILLE, N.C. (Legal Newsline) – A major chemical company has filed a motion asking a federal court to dismiss a lawsuit claiming it polluted a North Carolina river, causing sickness and property damage to those living near its banks.

E. I. Du Pont De Nemours and Co., commonly known as DuPont, and The Chemours Co. FC LLC, are alleged to have discharged chemicals into the Cape Fear River and failed to disclose it.

A number of individuals who live near the river filed suit last year on their behalf and on behalf of others. This is one of a number of lawsuits DuPoint is facing over the alleged discharge of perfluorinated or polyflourinated compounds (PFCs), most notably what is known as GenX or C3 Dimer Acid.

DuPont, whose Fayetteville plant sits on the river that flows through the southeast and into the center of the state, filed a motion to dismiss March 2 with the U.S. District Court for the Eastern District of North Carolina.

The motion argues that the class action complaint "rests on a mistaken premise: the premise that any discharge of chemicals into the environment creates tort liability. To be actionable, however, a discharge of chemicals must cause the plaintiff to suffer actual harm," the company states.

"This requirement dooms plaintiffs’ complaint, which is long on accusations of deception and misconduct (accusations that defendants strongly deny), but short on assertions of cognizable injury or causation."

The company further argues that the complaint claims three of the four plaintiffs have physical ailments but do not allege that GenX or another chemical discharge caused those ailments.

In their April 13 motion arguing against the dismissal, those ailments are detailed. Plaintiffs Michael Kiser allegedly suffers from multiple cancers, liver disease, and intestinal cysts; Victoria Carey alleges she has thyroid disease and an immune disorder; and Brent Nix alleges he has ulcerative colitis and diverticulitis.

The plaintiffs also claim property damage.

In their motion, the plaintiffs state "Defendants are once again playing fast and loose with the law and the truth, applying the wrong standard of review, ignoring longstanding principles of tort law, and falsely claiming that essential allegations are missing" from the class action complaint.

The plaintiffs said they have claimed causation, stating that the complaint alleges that the PFC pollution was the “direct and proximate” cause of the ailments.

DuPont and Chemours further argue that the particular chemical product has not been regulated by the government and therefore the companies cannot be held liable for any property damage. The plaintiffs state the companies have a common law duty to not contaminate the water supply and the fact there is no regulation does not matter.

While DuPont and Chemours say the plaintiffs failed to argue they were unjustly enriched, those suing argue that is not true, that it was their land and water supply used to dispose of the chemical.

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Organizations in this Story

DuPontU.S. District Court for the Eastern District of North Carolina