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Ohio AG boxes town out of his PFOA lawsuit against DuPont

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By Scott Holland | Jan 30, 2020

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Yost

CIRCLEVILLE, Ohio (Legal Newsline) – An Ohio appeals panel has determined it lacks jurisdiction to hear a challenge to a lower court’s rejection of an intervention motion in a lawsuit pursued by Ohio Attorney General Dave Yost against DuPont.

In an opinion issued Jan. 16 and written by Judge Michael Hess, the panel said the trial court order isn’t final and can’t yet be appealed. Judges Jason Smith and Peter Abele concurred.

The issue dates to a February 2018 lawsuit filed by Yost's predecessor, Mike DeWine, in which the State alleged E.I. DuPont Nemours was responsible for perfluorooctanoic acid (PFOA) found in the Ohio River and nearby water and soil samples. That October, the Little Hocking Water Association filed a motion to intervene as a plaintiff in order make sure any relief granted wouldn’t affect DuPont’s obligations under its state Environmental Protection Agency permit as well as a confidential settlement between Little Hocking and DuPont concerning contaminated wellfields.

The State and DuPont opposed the requested intervention. On June 4, a Washington County Court of Common Pleas judge denied the motion, prompting Little Hocking’s appeal. The Fourth Appellate District Court of Appeals issued a magistrate’s order noting the Washington County order might not be final and therefore not subject to appeal. Little Hocking filed a memo in support or jurisdiction in August, and the State filed an opposing motion two weeks later.

According to the panel, denial of a motion to intervene is not automatically final and appealable under Ohio law. Such motions can only be appealed if the denial effectively determines the fate of a party’s substantial right.

On appeal, Little Hocking argued the denial meant exactly that because it had no other means to challenge the State’s goal of forcing PFOA contamination remediation that would include the association’s wellfields and groundwater aquifer.

The State countered by arguing Little Hocking never demonstrated its proposed claims arise from the State’s lawsuit, but rather is seeking relief based on contingencies. Further, it said although Little Hocking can’t intervene, it retains the right to bring a legal challenge to any actual property rights issues that could arise.

“After reviewing the filings and the arguments of both parties, we find that Little Hocking can protect and litigate its claims in another case and, therefore, it is not a final appealable order,” Hess wrote. 

“Little Hocking’s past litigation against DuPont likewise provided it with a sufficient avenue to protect its interests and litigate its claims such that the denial of intervention did not determine the action or prevent a judgment in its favor. 

"Moreover, although Little Hocking states that it seeks intervention – at least in part – to protect the terms of the confidential settlement agreement, we agree with the State’s contention that Little Hocking can protect those terms through an enforcement action in federal court.”

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Ohio Fourth District Court of Appeals