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DuPont plaintiffs can sue, seek medical monitoring

MORGANTOWN, W.Va. — Fourteen plaintiffs in a personal-injury case against DuPont can enroll in a related, court-administered medical monitoring program even as they sue the chemical giant over a former West Virginia zinc-smelting plant that they say made them sick.

Harrison County Circuit Judge Thomas Bedell issued his ruling in the Spelter smelter case Tuesday, and plaintiffs got word of their victory by mail Thursday.

“We are all pleased with this decision,” said lead plaintiff Rebecca Morlock. “It has been an uphill battle for all, and we are still climbing.”

DuPont is reviewing the judge’s order and considering its options, spokesman Dan Turner said.

“In the meantime, we’ll continue to vigorously defend ourselves in the personal injury cases and continue to work with the settlement administrator on the implementation of the medical monitoring program.”

DuPont had argued that there’s no point in testing for early detection of illnesses if the plaintiffs are already sick.

It accused those in the personal injury case of double-dipping because they were also plaintiffs in class-action lawsuit that produced a $196 million punitive damages award, a $130 million medical monitoring program and a $55.5 million cleanup fund in 2007.

The plaintiffs countered that they’re still being exposed to arsenic, cadmium, lead and zinc from the site, and some illnesses can take as long as 40 years to develop.

Bedell agreed.

“In seeking medical monitoring, the present personal injury plaintiffs are not attempting to ‘have it both ways,'” his order says. “Clear West Virginia precedent dictates that a claim for medical monitoring is a separate cause of action.”

The smelter in north-central West Virginia produced more than 4 billion pounds of slab zinc and 400 million pounds of zinc dust for use in rustproofing products, paint pigments and battery anodes. By 1971, a toxic waste pile stood 100 feet tall and covered nearly half of the 112-acre site. Dust often blew into homes.

The plant closed in 2001, and DuPont worked with state regulators to demolish buildings and cap the site.

But four years ago, a jury ruled DuPont was negligent in creating the waste pile, and that it had deliberately downplayed and lied to its neighbors about possible health threats. It awarded $380 million in punitive damages — an amount the state Supreme Court later cut to $196 million.

The high court affirmed that thousands of residents were entitled to a 40-year medical monitoring program and a cleanup fund for private properties.

Those verdicts were later wiped out when DuPont dropped its appeal and offered a $70 million settlement that included $4 million to be set aside for cash payments to people who are eligible for medical monitoring. The remaining $66 million is to clean up contaminated properties, launch the medical monitoring program, pay attorneys and pay the plaintiffs.

DuPont also offered a 30-year medical monitoring program for people who meet certain residency requirements. Its cost depends on the number of participants.

The settlement did not prohibit future personal injury claims.

Morlock and the other plaintiffs blame dozens of maladies on DuPont and are demanding damages for pain and suffering, lost wages, and medical testing and treatment.

Among their complaints are: ovarian and uterine cancer; bipolar disorder and mental distress; kidney problems; migraine headaches; seizure-like activity; skin lesions; low IQ scores; numbness and tingling of extremities; and thyroid, vascular and connective tissue diseases.

The medical monitoring program is set to begin in September.