Sustained Outrage

Chasing DuPont’s C8 liabilities

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Controversy continues to swirl over DuPont’s legacy liabilities for C8 contamination.

The News-Journal reported this interesting story earlier this week:

Plaintiffs suing DuPont Co. over alleged exposure to the toxic chemical C8 want to know who is going to pay the $1 billion in damages they are seeking.

Who will be held ultimately responsible is unclear, they say, because DuPont plans to merge with the Dow Chemical Co. later this year and then split into three separate businesses by 2018.

The plaintiffs this week asked a federal judge for documents clarifying DuPont’s liabilities and obligations after the merger and subsequent split.

I’ve posted a copy of that legal filing here, and the News-Journal story continues:

In an April 18 legal filing, Julie Mazza, acting associate general counsel for DuPont, said the company has not made a decision on how the liability will be handled. Mazza also said it is unclear how the company will handle its obligations under Leach v. DuPont.

The Leach case, filed by Mid-Ohio Valley residents, was settled in 2005. Under the settlement, DuPont was mandated to pay for medical monitoring of those potentially exposed to C8 and install water filters to remove the chemical from area water supplies among other commitments. Thousands of Mid-Ohio Valley citizens had opted out of the Leach settlement to pursue their own claims. Those cases will move forward at the glacial pace of 40 cases a year starting in 2017.

“Currently, there has been no determination as to how the obligations of DuPont to the other parties under the Leach settlement agreement would be allocated as part of any post-merger separations,” Mazza wrote referring to Leach v. DuPont, which was filed in 2001.

Plaintiffs’ attorneys representing those who opted out of the Leach settlement responded to Mazza with a motion asking the court to release documents providing details on the C8 liabilities. In a separate court filing, the attorneys called Mazza’s declaration “troubling.”

“It failed to supply any meaningful information regarding where the liabilities relating to the C8 litigation will end up after the proposed DuPont/Dow merger,” wrote Michael London of Douglas & London, a New York firm. “Most importantly, the declaration failed to provide any information regarding whether DuPont will even exist after the merger transaction.”

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C8: What about West Virginia’s water?

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In this Friday, Feb. 26, 2016 photo, a woman leaves a Tops supermarket with bottled water that is being supplied to residents in Hoosick Falls, N.Y. PFOA, long used in the manufacuring of Teflon pans, Gore-Tex jackets, ski wax, and many other products has turned up in the water in factory towns around the country like Hoosick Falls, impacting drinking water. (AP Photo/Mike Groll)

In this Friday, Feb. 26, 2016 photo, a woman leaves a Tops supermarket with bottled water that is being supplied to residents in Hoosick Falls, N.Y. PFOA, long used in the manufacuring of Teflon pans, Gore-Tex jackets, ski wax, and many other products has turned up in the water in factory towns around the country like Hoosick Falls, impacting drinking water. (AP Photo/Mike Groll)

The discovery and continued controversy over C8 contamination in the drinking water supply in Hoosick Falls, New York, continues to cause quite a stir — and a flurry of response and action by federal and state officials.

Over last weekend, as reported here by The New York Times, Gov. Andrew Cuoma made the announcement that a fairly quick move to install new filters on the local water system has had the desired results:

More than six weeks after declaring an environmental emergency in this upstate village, Gov. Andrew M. Cuomo made his first visit here on Sunday, announcing that a new filter system had successfully cleared a toxic chemical known as PFOA from the municipal water supply.

It’s quite a contrast to West Virginia, where for some residents in the Mid-Ohio Valley it took a years-long court battle to get water treatment to rid their water of C8 — and where some residents in that same part of the state still can’t get any action on the contamination in their communities.  As we recently reported in the Gazette-Mail:

While the Obama administration continues work on a long-awaited national standard for C8, the U.S. Environmental Protection Agency has tightened a pollution advisory for a town in New York — but not for West Virginia communities where drinking water has long been contaminated with the same toxic chemical.

Last week, a lawyer who has for 15 years been urging EPA to take stronger actions about C8 pollution from DuPont Co. and other firms wrote to the agency to question why officials have not updated a drinking water advisory level for Wood County communities to match one issued in late January in Hoosick Falls, New York.

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Judge rejects DuPont’s bid for new C8 trial

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There’s a hefty new ruling out of federal court in Ohio, in which U.S. District Judge Edmund A. Sargus Jr. turns down a request from DuPont Co. for a new trial or a ruling in its favor as a matter of law in the big C8 case trial that ended with a $1.6 million verdict against the company.

You can read the 125-page order here. It’s a remarkably detailed history and analysis of issues not only in the trial of Carla Bartlett and her kidney cancer case against DuPont, but also of the previous litigation that led us to this point and of the long history of DuPont’s mismanagement of C8 and the health threats it poses.

Of course, there are more than 3,500 individual C8 cases to go — and Judge Sargus last month issued this order that outlines a plan for trying first the 260 cancer cases on a schedule of 40 per month starting in April 2017.

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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.

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The latest on C8 pollution

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There’s a new report out this morning from the Environmental Working Group about the dangers of the DuPont Co. toxic chemical C8. Here’s the first bit of the group’s press release:

Newly published research shows that even very small doses of the Teflon chemical PFOA in drinking water pose a more serious threat to public health than previously thought. EWG’s report on the research, released today, shows that federal guidance on safe levels for PFOA is hundreds, even thousands of times too weak. 

You can read the full report here.  The report cites, among other things, this paper published this month by Harvard University’s Philippe Grandjean and University of Massachusetts at Lowell’s Richard Clapp, which concludes:

Perfluorinated alkyl substances have been in use for over sixty years. These highly stable substances were at first thought to be virtually inert and of low toxicity. Toxicity information slowly emerged on perfluorooctanoic acid and perfluorooctane sulfonate. More than thirty years ago, early studies reported immunotoxicity and carcinogenicity effects. The substances were discovered in blood samples from exposed workers, then in the general population and in community water supplies near U.S. manufacturing plants. Only recently has research publication on perfluorooctanoic acid and perfluorooctane sulfonate intensified. While the toxicology database is still far from complete, carcinogenicity and immunotoxicity now appear to be relevant risks at prevalent exposure levels. Existing drinking water limits are based on less complete evidence that was available before 2008 and may be more than 100-fold too high. As risk evaluations assume that untested effects do not require regulatory attention, the greatly underestimated health risks from perfluorooctanoic acid and perfluorooctane sulfonate illustrate the public health implications of assuming the safety of incompletely tested industrial chemicals.

Meanwhile, in federal court over in Ohio, there was another in a series of important rulings (see here and here)  in advance of the mid-September and late-November start of trial in the first two of the thousands of personal injury cases pending against DuPont.  This particular ruling, issued on Wednesday by Chief U.S. District Judge Edmund A. Sargus Jr., denied DuPont’s motion for summary judgment on the issue of punitive damages in the cases brought by Carla Marie Bartlett and John M. Wolf.

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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.

New scrutiny for C8 alternatives and DuPont

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DuPont, C8 and chemicals being used to replace C8 are receiving new attention today, with the publication of a major essay in a scientific journal and the release of a critical report by the advocacy organization Environmental Working Group.

The New York Times wrapped these developments into a story headlined, “Commonly used chemicals come under new scrutiny“:

A top federal health official and hundreds of environmental scientists on Friday voiced new health concerns about a common class of chemicals used in products as varied as pizza boxes and carpet treatments.

The concerted public campaign renews a years-old debate about a class of chemicals known as poly- and perfluoroalkyl substances, or PFASs. After studies showed that some PFASs lingered in people’s bodies for years, and appeared to increase the risks of cancer and other health problems, the chemical manufacturer DuPont banned the use of one type of PFAS in its popular Teflon products, and other companies followed suit.

At issue now are replacement chemicals developed by those manufacturers and used in thousands of products, including electronics, footwear, sleeping bags, tents, protective gear for firefighters and even the foams used to extinguish fires.

The new commentary, by Linda S. Birnbaum of the National Institutes of Health and Harvard’s Philippe Grandjean, explains:

Research is needed to understand the potential for adverse health effects from exposure to the short-chain PFASs, especially regarding low-dose endocrine disruption and immunotoxicity. In parallel, research is needed to find safe alternatives for all current uses of PFASs. The question is, should these chemicals continue to be used in consumer products in the meantime, given their persistence in the environment? And, in the absence of indisputably safe alternatives, are consumers willing to give up certain product functionalities, such as stain resistance, to protect themselves against potential health risks? These conundrums cannot be resolved by science alone but need to be considered in an open discussion informed by the scientific evidence.

The Environmental Working Group report adds:

Production, use and importation of PFOA has ended in the United States, but in its place DuPont and other companies are using similar compounds that may not be much – if at all – safer. These next-generation PFCs are used in greaseproof food wrappers, waterproof clothing and other products. Few have been tested for safety, and the names, composition and health effects of most are hidden as trade secrets. With the new PFCs’ potential for harm, continued global production, the chemicals’ persistence in the environment and presence in drinking water in at least 29 states, we’re a long way from the day when PFCs will be no cause for concern.

 EWG also notes, citing what’s known as the “Madrid Statement”:

In a just-published paper, 14 international scientists have sounded the alarm, calling for tighter controls on all PFCs lest the tragic history of C8 repeat itself. Writing in Environmental Health Perspectives, they likened the new PFCs (which they refer to as PFASs) to the chemicals that replaced another group of fluorine-based substances found in the 1980s to be depleting Earth’s protective ozone layer. Although those chemicals were banned worldwide under a 1987 treaty, the scientists wrote, the alternatives are also harmful:

Global action through the Montreal Protocol successfully reduced the use of the highly persistent ozone-depleting chlorofluorocarbons (CFCs), thus allowing for the recovery of the ozone layer. However, many of the organofluorine replacements for CFCs are still of concern due to their high global warming potential. It is essential to learn from such past efforts and take measures at the international level to reduce the use of PFASs in products and prevent their replacement with fluorinated alternatives in order to avoid long-term harm to human health and the environment.

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Study says EPA advisory for C8 is far too weak

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Earlier this month, Callie Lyons wrote an important piece about lingering questions regarding exposure to toxic C8 among residents of the Mid-Ohio Valley area. She explained:

… More than a decade after the deadly controversy came to light, in many ways the extent of the contamination remains unknown. The impact on local cattle, hens, milk, eggs and produce remains largely unmeasured … An extensive paper trail reveals that DuPont promised to fill in data gaps identified by the EPA as early as 2003, then repeatedly failed to deliver the requested information.

 
And now, we have a new peer-reviewed study from Harvard University that raises serious questions about the provisional health advisories that EPA issued in the final days of the Bush administration in response to concerns about water supplies polluted with C8:

The current EPA limit for this PFC is 300-fold higher. Thus, the recent evidence on PFC immunotoxicity in humans and toxicity in animal models suggests that current limits for drinking water contamination are too permissive and must be decreased substantially.

Current drinking water limits therefore need to be reconsidered in the light of the observed immunotoxicity associated with PFC exposure.

UPDATED, APRIL 30, 2013 — Read more in this story.

New studies raise more questions about C8

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There are two new studies out this week that raise more questions about the dangers of DuPont Co.’s chemical, C8.

First, there’s this paper published in the journal Environmental Health Perspectives, concluding:

This study suggests an association between PFC exposure and juvenile asthma. Due to widespread exposure to these chemicals, these findings may be of potential public health concern.

Then, there’s this paper, also published yesterday in that same journal:

This study suggests that higher PFOA serum levels may be associated with testicular, kidney, prostate, and ovarian cancers and non-Hodgkin’s lymphoma. Strengths of this study include near-complete case ascertainment for state residents, and well characterized contrasts in predicted PFOA serum levels from 6 contaminated water supplies.

That one is especially interesting, given that it was co-authored by Tony Fletcher of the London School of Hygiene and Tropical Medicine. Dr. Fletcher was a member of the C8 Science Panel, which previously ruled that the only “probable links” between C8 exposure and cancers were for testicular and kidney cancers.

UPDATED: I asked Dr. Fletcher to explain the contradictions between this new study and the Science Panel’s probable link findings, and this is the email he sent me:

This is a general issue of assessing the evidence which has been faced for all the probable link assessments.  As described in the Science Panel Probable Links reports, for each evaluation we considered evidence together from published studies done by others, and from published and unpublished work done by the Science Panel. We considered the weight of the evidence, including consistency across studies. We took into account the capability of different study designs to detect a disease risk if such a risk exists: this capability of each study depends on both study size (a large study is better able to show the presence or absence of risk) and study quality (how good was the exposure assessment, how complete was the study population, how well controlled were the potential confounding factors etc). In many cases we found that some results were quite different , where one study suggested a risk and another did not, or within one study, different ways of analysing the results lead to different patterns of results. In each case we then judged whether the balance of evidence convinced us that it is more likely than not that an observed excess risk was explained by the connection between PFOA exposure and the particular human disease. Or alternatively we judged that an excess was more likely than not due to chance or study artefact. Where an individual positive association was based on stronger evidence (for example with a convincing pattern of increasing risk with exposure category and strong statistical significance), this carries more weight than results with weaker significance tests and without supportive results from other studies/analyses. Such considerations guide us in determining what is a “probable link” as defined in the Settlement Agreement.

The specific questions you raise are examples of this. Some of the particular set of results you can see in this paper (prostate cancer, ovarian cancer and non-Hodgkin’s lymphoma) were based on small numbers or showed unimpressive p-values or were not replicated by other studies, and when we put the evidence together we concluded for these that there was overall insufficient evidence to support a probable link with C8.

Finally, there was a third paper, this article, published in late December in the journal Environmental Science and Technology:

The present study investigated variation in perfluorocarbon levels of 9,952 women of childbearing age who had been exposed to perfluorooctanoic acid (PFOA) in drinking water contaminated by industrial waste. An analysis of variance with contrast was performed to compare the levels of PFOA and perfluorooctanesulfonic acid (PFOS) in pregnant and nonpregnant women overall and during each trimester of pregnancy. We found that pregnant women had lower circulating PFOA and PFOS concentrations in peripheral blood than nonpregnant women and that PFOA levels were consistently lower throughout all trimesters for pregnancy, suggesting transfer to the fetus at an early stage of gestation. These results are discussed in the context of the endocrine-disrupting properties of perfluoroalkyl substances that have been characterized in animal and human studies. Our conclusion is that further, systematic study of the potential implications of intrauterine perfluorocarbon exposure during critical periods of fetal development is urgently needed.

Final C8 Science Panel reports due out Monday

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The C8 Science Panel has scheduled a press conference for Monday morning in Parkersburg, to announce its final reports of its long investigation into the dangers of the DuPont chemical. Here’s the media advisory sent out this morning:

On the morning of Monday, October 29, final reports on whether there is a probable link between C8 and human disease will be delivered to the Wood County Court on behalf of the C8 Science Panel.  Immediately following submission to the court, the three Science Panel members will hold a press conference in Parkersburg/Vienna, WV at 10 am at the Wingate Hotel (next to Lowe’s).

The Science Panel has already released three rounds of its “probable link” reports, finding connections between C8 exposure and a variety of illnesses: High blood pressure during pregnancy, kidney and testicular cancer, and thyroid and bowel disease. The panel is now due to make public its findings regarding liver disease, kidney disease, osteoarthritis, parkinson’s disease, heart disease, hypercholesterolemia and hypertension.

Interestingly, there were a couple of stories in the Parkersburg paper today related to C8. One of the stories reported this development:

The first three West Virginia lawsuits have been filed in Wood County Circuit Court against DuPont alleging personal injury and, in one case, a death allegedly linked to C8 exposure.

These new suits were filed by Charleston lawyer Kathy Brown, who is apparently working with an Alabama law firm, Cory Watson Crowder & DeGaris, as the Parkersburg paper reported:

Brown is working with the law firm of Cory Watson Crowder & DeGaris, P.C. Cory Watson is a Birmingham, Ala., personal injury law firm known for handling similar multi-plaintiff and personal injury lawsuits. Cory Watson has also handled contamination litigation throughout the country involving other multi-national corporate defendants such as Monsanto, BP Oil, Pharmacia, Pfizer and Chevron.

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