DuPont Lawyers' Words Haunt Company in Ohio Toxic Water Trial

The future of DuPont Co. spinoff Chemours Corp. might hinge on an Ohio woman, who blames the chemical giant for her kidney cancer and says words of the company’s own lawyers support her claim.

Carla Marie Bartlett, 59, is one of 3,500 people who sued DuPont, claiming they got sick or had a family member die because C-8 -- a chemical DuPont used in the making of Teflon at a West Virginia plant -- got into drinking water and spilled across the border into Ohio.

As her case, the first to go to trial, began Tuesday, lawyers said they had a trail of internal documents that showed DuPont knew of the chemical’s dangers while it misled regulators and the public.

DuPont told their employees to wear gas masks and gloves while working with C-8, but “no one tells Ms. Bartlett to wear gloves and a gas mask before she takes a shower,” Mike Papantonio, a lawyer for Bartlett, said to a jury and a packed Columbus, Ohio, courtroom in opening arguments.

Damond Mace, a lawyer for DuPont, said government agencies set limits for the amount of some chemicals in water but C-8 isn’t regulated as such.

Not on Lists

"C-8 is not on these lists, and it has been studied for decades,” Mace said. He also noted that 3M Corp., which first supplied DuPont with C-8, said repeatedly that there were no problems among its workers exposed to the chemical, even at high levels.

If Bartlett’s lawyers convince jurors that DuPont knowingly contaminated the drinking water, it could weigh in favor of a settlement, although companies usually go through a handful of trials before making any kind of a pact. DuPont has another trial scheduled for later this year.

Damages would be borne by Chemours, the company spun off July 1 that continues the Teflon business and which had agreed to take on many of DuPont’s legal obligations.

Based on past settlements for personal injuries and wrongful deaths, that exposure could be about $498 million, Thomas Claps, a litigation analyst at Susquehanna Financial Group, said in a Sept. 11 note. Anything over $500 million might push Chemours into bankruptcy, CRT Capital analyst Amer Tiwana, said.

C-8, or perfluorooctanoic acid -- also known as PFOA -- is a soap-like substance that once gave Teflon its nonstick quality. DuPont has phased out the use of the chemical, reformulating products that go into fabrics, small appliances, and components used in food processing.

“We are confident that DuPont acted reasonably and responsibly at each stage in the long history of C-8, placing high priority on the health of its employees and the community,” Chemours said in an e-mailed statement.

“It may be their own documents undermine them,” Carl Tobias, a professor at Richmond School of Law and outside observer of the case, said in reference to correspondence Bartlett cited in her complaint.

On April 8, 2001, a DuPont lawyer described C-8 as a chemical “we poop to the river and into drinking water along the Ohio River,” according to Bartlett’s complaint.

Later that year, the company’s in-house counsel wrote that DuPont was exceeding its guidelines for contamination near the plant, adding: “Too bad the business wants to hunker down as though everything will not come out in the litigation, god knows how they could be so clueless, don’t they read the paper or go to the movies?”

It’s one of 11 examples of correspondence from 2000 to 2002 cited by Bartlett’s lawyers in the complaint as showing DuPont was aware of the risks of C-8 and ignoring them. Her kidney cancer was diagnosed in 1997.

C-8 Notice

DuPont didn’t have notice of C-8 in Bartlett’s water district until 2002, after her cancer had been removed, Mace said.

Bartlett claimed in court documents that DuPont knew C-8 was in the drinking water around its plant as far back as 1984, when the company told employees living near the Parkersburg, West Virginia, facility to secretly collect tap water from their homes and found the chemical.

DuPont had 2,000 employees who lived around the plant and when it first learned traces of C-8 were found in the drinking water in that area, it did evaluations and set conservative guidelines for exposure, Mace told the jury.

Unlike personal injury suits against drug or tobacco companies, DuPont can’t argue that the consumers made their own choice, Tobias said. “People have to drink water.”

U.S. District Judge Edmund A. Sargus has said some evidence DuPont sought to exclude could be used in the trial, including claims the company mishandled the deaths of 376 cows. DuPont argued the cows hadn’t drank the same water as Bartlett, so their deaths weren’t relevant. Sargus said DuPont’s handling of the incident may help a jury decide Bartlett’s case.

Toxic Nature

While it had known the chemical’s toxic nature as far back as 1961, DuPont repeatedly told the public and regulators that the water was safe, and ramped up production even as 3M phased it out, Bartlett claims.

3M notified DuPont in 1978 that workers exposed to C-8 showed an increased level of organic fluorinated compounds in their blood but no adverse health effects were detected, the company said.

DuPont said independent studies over the past 10 to 15 years show C-8 is present in low levels in just about everyone’s blood.

Arguments by DuPont challenging whether C-8 caused Bartlett’s cancer will be constrained by a 2004 settlement. After 80,000 people sought to sue over a variety of diseases, DuPont agreed to help form a science panel to study their claims.

After seven years, the panel found a probable link between six diseases and C-8, including kidney cancer, testicular cancer and ulcerative colitis. That finding meant that under the 2004 pact, DuPont can’t argue against it.

Obesity Link?

DuPont will be allowed to argue that obesity may be a cause of kidney cancer, Sargus ruled on Aug. 31. Bartlett weighs about 230 pounds (104 kilograms).

Most of the 3,500 lawsuits relate to personal injuries associated with high cholesterol and thyroid disease. There are 37 claims for wrongful death.

“Depending on how large the liabilities are, Chemours could face bankruptcy and there would be a bunch of litigation around where DuPont stands,” said Christopher Perrella, a Bloomberg Intelligence analyst. 

“Litigation of this type typically takes place over many years,” Chemours said in its statement. “Interim results, including court rulings, trial verdicts and most appeals, are not the end of the litigation, and do not necessarily predict the final outcome.”