Sustained Outrage

successtopphoto

As the mid-September trial date approaches for the first of the personal injury cases against DuPont over the company’s C8 pollution, there’s been some new media interest in the story, from both The Intercept and from The Huffington Post.  Lengthy stories by both included discussion of what got a lot of this whole thing out in the open in the first place — the controversy over what happened to the Tennant family’s cattle — and issue that has now come up again in the ongoing litigation.

Here’s The Intercept:

It may have been luck too — good or bad, depending on what side of the case you’re on — that led the attorney Robert Bilott to sue the DuPont company. In any case, he was an unlikely person to take on one of the world’s largest chemical companies. A partner at a corporate firm in Cincinnati, Bilott had spent his first eight years as an attorney on the other side of the table, defending large companies like DuPont. But in 1999 a cattle farmer named Wilbur Tennant came to see him. Tennant told him that DuPont had bought land from his family that was adjacent to his farm, for what the company had assured him would be a non-hazardous landfill, according to a letter Bilott later filed with the Environmental Protection Agency. Soon, a stream his cows drank from started to run smelly and black, with a layer of foam floating on the surface. Within a few years, hundreds of Tennant’s cattle had died. Bilott had no way of knowing at the time that what seemed like a straightforward case would lead to one of the most significant class-action lawsuits in the history of environmental law.

And here’s the Huffington Post:

The Tennant clan farmed the fertile patch of soil around the home place for more than a century. In the 1950s, Jim’s father ran off, leaving his wife to look after nine cows, two mules, one hog and five children. But the family got by, eating turtle and muskrat and peddling anything it could grow or forage—wild watercress and elderberries in the spring; ginseng and lima beans in the summer; hay and apples in the fall. Their West Virginia farm eventually grew into a 700-acre operation, with more than 200 head of cattle and enough corn to pack a 35-foot silo. Jim and his wife Della bought a house on an adjoining plot of land and swapped the outhouse for an indoor toilet.

Then, in the early 1980s, DuPont, which ran a sprawling chemical plant called Washington Works in nearby Parkersburg, approached the family about buying some acreage for a landfill. The Tennants were wary of having a waste dump so close to the farm. But DuPont assured them it would only dispose of non-toxic material like ash and scrap metal, and so they agreed to sell.

Shortly after the deal closed, Jim and Della, whose home abutted the new landfill, say their two young daughters started wheezing and hacking. Worried about the girls’ health, they moved to a house in town. But most of their relatives stayed, and Jim and Della continued hunting game and eating beef grazed on the farm.

Della took her daughters’ Girl Scout troop there to catch tadpoles in the creek and make plaster molds of deer tracks. Then, at some point in the mid-1990s, the water in the creek turned black and foamy, and the family began finding dead deer tangled in the brambles. The cattle started going blind, sprouting tumors, vomiting blood.

“One time this cow was coming down the road and it was just bellowing, the awfulest bellow you ever heard,” Della told me. “And every time it would bellow, blood would gush from its mouth and its nose. It just bellowed and bellowed and blood just kept flying, and then it would fall down, and it would try to get up … We didn’t have anything to shoot it with, so we just had to watch it until finally the cow bled to death.”

DuPont lawyers understandably would prefer that a jury in the C8 cases not hear anything about the cattle. They filed a motion to have such evidence excluded, arguing, among other things, that “any statement or suggestion that C8 has caused or causes cattle disease or cattle death is unsupported and would be misleading to the jury and unfairly prejudicial to DuPont.” The plaintiffs responded that they planned to offer the cattle evidence only in response to DuPont’s claims that it has at all times acted “proactively” with regard to C8 and public safety.

In a ruling issued yesterday, Chief U.S. District Judge Edmund A. Sargus Jr. in Columbus recounted the history of the cattle controversy:

In the early 1980s, DuPont purchased a portion of farm land from a local cattle rancher, Earl Tennant and his family. The Tennant’s farm was located in Wood County, West Virginia, and ran adjacent to Dry Run Creek. DuPont utilized this land as an unlined landfill in which it ultimately dumped 7,100 tons of sludge that was contaminated with C8. On March , 1991, DuPont held an internal “C8 Meeting” in which seven DuPont employees discussed several issues regarding C8 including “What would be the effect of cows drinking water from the exit stream at Dry Run Landfill (100 ppb)?”.

In the late 1990s Mr. Tennant and others contacted the United States Environmental Protection Agency about concerns of discharges from the Dry Run Landfill into the Dry Run Creek. Mr. Tennant had a herd of cattle that were dying and he believed that the discharges from the Dry Run landfill could have been responsible. DuPont and the EPA each selected three veterinarians to be part of the “Cattle Team” to investigate the health of Mr. Tennant’s herd of cattle. At the time the investigation began in 1999, Mr. Tennant had lost 176 cows and 200 calves, leaving 41 remaining herd animals. The Cattle Team unanimously concluded that the poor health of Mr. Tennant’s cattle was the result of his “herd management practices,” and that “there was no evidence of toxicity associated with chemical contamination of the environment.”

The judge also notes, though, that the plaintiffs point out that the only information that DuPont provided to the Cattle Team regarding C8 was a single page that listed several chemicals characterized as possibly being present in “de minimus” amounts at the landfill. The plaintiffs’ argue this characterization of the C8 in the landfill “was a blatant falsehood” – given that DuPont officials were discussing as early as 1991 whether C8 in the landfill might impact cattle drinking from Dry Run Creek — and “is evidence of DuPont’s feigned efforts to mitigate the problem with C8 pollution.”

Judge Sargus concluded that the evidence plaintiffs want to present “may be relevant to show that at the time the Cattle Team was investigating, DuPont failed to provide it with information it possessed regarding C8.” The judge added:

A reasonable jury could infer that DuPont’s action, failure to act, or concealment is inconsistent with its claim that it acted proactively at all times with regard to C8.