Sustained Outrage

Judge in C8 case tells DuPont: A deal is a deal

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When the C8 Science Panel issued its last set of “probable link” findings nearly three years ago, the next step for Mid-Ohio Valley residents was supposed to be relatively simple: If they felt they had illnesses the panel had linked to C8 exposure, they could sue DuPont, without having to prove again that the illnesses in question could be caused by C8.

But as the first of thousands of lawsuits against DuPont prepares for a mid-September trial in federal court in Ohio, it hasn’t worked out that way. DuPont attorneys have continued to try to re-litigate the Science Panel findings — over and over again.

Now, U.S. District judge Edmund A. Sargus Jr. seems to have had enough. In this ruling issued earlier in the week, Judge Sargus reminded DuPont of its agreement all those years ago in the settlement of the Leach case, in which the parties agreed to live with the Science Panel’s conclusions: In the six instances (kidney cancer, testicular cancer, thyroid disease, ulcerative colitis, high cholesterol, pregnancy-induced hypertension, and preeclampsia) where the panel found a probable link to C8 exposure, DuPont would have to live with those findings in court. In the dozens of other instances where the panel found no link, residents would likewise have to live with those findings.

As Judge Sargus tried to explain in an earlier ruling on this back in December 2014:

…The Court concludes that if the individual plaintiffs prove that they are Leach Class members, and that they suffer or suffered from a Linked Disease, the Probably Link Finding is applicable to them. This means, for example, that the individual plaintiffs are not required to come forward with evidence proving that their individual dosage of C8 is sufficient to permit the Probable Link Finding to be applied to them. Under these circumstances, by agreeing to the Leach settlement, DuPont has contractually agreed to a finding of general causation.

 DuPont, though, insisted that they needed the judge to further clarify things. Company lawyers wanted to be able to argue at trial about dose, and to — in the judge’s words — “re-evaluating” the Science Panel’s reports. Judge Sargus explained:

DuPont’s mistake is focusing on the Science Panel’s reports/evaluations, instead of its findings .. DuPont has received the benefit of the No Probable Link Findings, immunity from lawsuits based on over forty diseases that tens of thousands of members of the Leach Class believe were caused by their ingestion of C8 that was released into their drinking water by DuPont.  None of those class members may engage in any analysis of the No Probable Link reports/evaluations. The conclusions reached in the No Probably Link reports, that is, the No Probable Link Findings, universally apply to the Leach Class.

The judge continued:

By way of further explanation, the Leach Settlement established a novel procedure for dealing with the approximately 80,000 individuals that make up the Leach Class by establishing the Science Panel and directing its work. Unlike the usual situation where epidemiologists start with a chemical exposure and then attempt to define the dose of that chemical which presents a sufficiently increased risk to conclude that such dose is ‘more likely than not’ sufficient to cause a particular disease, the parties directed the Science Panel to follow a very different process. The Science Panel was focused on an identified group of people (the Leach Class) with a defined level of exposure (0.5 ppb or greater of C8 for the period of at least one year) to a particular chemical (C8) and determine not how much of the chemical it might take to cause various diseases in humans generally, but which diseases were linked to the actual C8 exposures in that defined group. the Science Panel’s Probable Link Findings are, by agreement of the parties and by definition, links that exist and are ‘probable’ in the entire Leach Class.