DuPont Objects to Selection of Two New Bellwethers in Teflon Lawsuits

August 3, 2016 – San Diego, CA   DuPont has asked a federal judge in Ohio to reconsider a decision to try two additional cases in a multidistrict litigation involving the company’s Teflon brand, Law360 reported Monday.

U.S. District Judge Edmund A. Sargus decided in June to fast-track two additional cases for trial after two of the five selected bellwether trials ended in settlements earlier this year.

DuPont, which is facing roughly 3,500 suits in Ohio federal court, said the judge’s decision would prejudice the cases because the company would not have enough time to prepare.

“Far from advancing the goals of the MDL process, and contrary to fundamental principles of fairness and equity, these decisions and orders deprive DuPont of a full and fair opportunity to prepare its defenses, shift the balance in these cases even further in favor of the [plaintiffs’ steering committee], and ensure that the upcoming trials will have minimal impact on the overall resolution of this MDL,” the company wrote in an objection, as reported by Law360.

DuPont is fighting allegations that its illegal dumping of millions of tons of toxic chemicals used to make Teflon sickened residents in Ohio and West Virginia in the 1980s and 90s.

A class action settled in the early 2000s led to the findings that PFAO, a chemical used to make Teflon, could cause certain cancers, ulcerative colitis, pregnancy-induced hypertension, and other conditions. The company was accused of dumping millions of tons of PFOA near its plant in West Virginia, poisoning the water supplies of nearby residents.

Plaintiffs in the current MDL have been diagnosed with one of six conditions determined to be caused by PFOA. The cases were consolidated in Ohio federal court in 2013.

The first bellwether case ended with $1.6 million in damages awarded to a woman with kidney cancer, the second settled, and the third ended in July with $5.6 million awarded to a man with testicular cancer.

Before the third case ended last month, however, the two remaining bellwether cases scheduled to go to trial settled. It was then that Judge Sargus allowed the plaintiff’s steering committee to choose two new cases to be tried, the first in November and the second in January 2017.

“By focusing all of the attention on a small fraction of the cases in this MDL (cancer cases accounting for only 8% of the cases filed), while pushing all other cases to the backburner and not requiring the [plaintiffs’ steering committee] to provide even basic information about them, the court has eliminated any incentive the [plaintiffs’ steering committee] might otherwise have to screen and take responsibility for those cases, which has been and remains a significant impediment to resolution discussions,” the company wrote.

DuPont is facing a 40-trial-per-year pace, with the “sickest” cancer cases being tried in 2017 per Judge Sargus’ request.