CHARLESTON, W. Va. — (Mealey’s) The West Virginia Supreme Court of Appeals on March 26 slashed a $196 million punitive damages award against DuPont and held that a jury must decide whether the class action suit, alleging contamination from the company’s zinc smelter, was filed within the two-year statute of limitations (Lenora Perrine, et al., v. E.I. DuPont De Nemours and Company, et al., Nos. 34333, 34334 and 34335, W. Va. Sup.).
The state’s high court concluded that punitive damages are not allowed in connection with a medical monitoring claim and reduced the jury’s punitive award against E.I. du Pont de Nemours and Co. by 40 percent. It also held that “mitigating circumstances” warranted a further $20 million reduction in the award. The court remanded the issue to the trial court to give Lenora Perrine and the other plaintiffs 30 days to decide whether they will accept the reduced punitive award of $97.72 million or submit to a new trial on punitive damages.
The court reversed two orders by the Harrison County Circuit Court granting summary judgment in favor of the plaintiffs on the statute of limitations issue. In ordering remand on that issue, the high court said that if a jury determines that the plaintiffs did not have the requisite knowledge to trigger the running of the statute of limitations more than two years before filing their action, the judgment in their favor stands. If the jury decides that the plaintiffs had that knowledge more than two years before filing the action, the trial court must set aside the action and enter judgment in favor of DuPont, the court said.
The court also affirmed the Circuit Court’s order from September 2006 granting class certification and found that the evidence was sufficient to support the jury’s medical monitoring verdict.
A jury in October 2007 found DuPont to be liable for $381,737,522 for arsenic, cadmium and lead contamination emanating from its zinc smelter facility in Spelter, W. Va. The verdict consisted of $55,537,522 for soil and structural remediation, an estimated $130 million for medical monitoring and $196.2 million in punitive damages.
After finding that the 40 percent of the jury’s punitive damages award that was apportioned for the medical monitoring claims cannot stand, the high court held that the Circuit Court erred by not considering the $20 million DuPont has spent on remediation of the Spelter smelter site.
Taylor County Circuit Judge Alan D. Moats delivered the court’s opinion. Judge Moats and Mercer County Circuit Judge Derek C. Swope were sitting by temporary assignment, in place of Justices Brent D. Benjamin and Thomas E. McHugh.
Chief Justice Robin Jean Davis and Justices Margaret L. Workman and Menis E. Ketchum II issued separate opinions concurring in part and dissenting in part. Chief Justice Davis concurred with the majority’s opinion except for its refusal to permit the plaintiffs to recover punitive damages on the medical monitoring claim. Justice Workman also disagreed with the majority’s finding that punitive damages are not available for medical monitoring claims.
Justice Ketchum opined that judgment should be entered for DuPont or, “[a]t the very least,” a new trial on all issues should be held because the plaintiffs failed to prove the required elements of West Virginia’s medical monitoring and property damage law.
DuPont General Counsel Thomas L. Sager issued a statement Friday saying the company was “extremely disappointed” that the Supreme Court of Appeals did not reverse the verdict.
[Editor's Note: Full coverage will be in the April issue. In the meantime, the opinions are available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844. Majority opinion. Document #67-100416-014Z. Justice Workman concurrence/dissent. Document #67-100416-017Z. Justice Ketchum concurrence/dissent. Document #67-100416-016Z. Chief Justice Davis concurrence/dissent. Document #67-100416-015Z. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]
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