West Virginia Supreme Court Reverses Portions of DuPont Class Action Verdict

An important decision was issued by the West Virginia Supreme Court of Appeals this past week. Perrine v. E. I. DuPont De Nemours, et al, Nos. 34333, 34334 and 34335 involved a class action brought by residents of Spelter claiming damages as a result of the operation of a nearby zinc smelter. The history of the plant, and how DuPont ended up being sheld responsible for the effects of its operation, are too lengthy to be set forth here. (Ken Ward has an article on the case here.) Suffice it to say that, after lengthy litigation, plaintiffs were awarded a little over $381,000,000 for soil and structural remediation, medical monitoring, and punitive damages.

On appeal, the Court ruled that punitive damages are not available for medical monitoring. Here's Syllabus Point 5:

5. Punitive damages may not be awarded on a cause of action for medical monitoring.

It doesn't get much clearer than that. As a result, the Court cut the punitive damages that were awarded as a result of the medical monitoring award. More importantly, from DuPont's standpoint, the Copurt allowed it to show that some or all of the plaintiffs filed outside the statute of limitations.

We reverse those portions of the September 14, 2007, and September 20, 2007, orders granting summary judgment in favor of the Plaintiffs on the issue of the statute of limitations. Accordingly, we remand with directions to the circuit court to hold a jury trial on the sole issue of when the Plaintiffs possessed the requisite knowledge to trigger the running of the statute of limitations. If the jury determines that the Plaintiffs did not have the requisite knowledge more than two years prior to filing their cause of action, then the judgment in favor of the Plaintiffs, as modified by this opinion, stands. If, however, the jury determines that the Plaintiffs had the requisite knowledge more than two years prior to filing their cause of action, then the trial court must set aside the verdict and render judgment in favor of DuPont.

It appears from some evidence, such as the hiring or consulting with lawyers more than 2 years before the lawsuit was filed, that the plaintiffs may have had sufficient knowledge of potential harm and filed too late. If a jury finds that is so, the whole case gets tossed out.

It's a long decision, and is less an environmental law decision than a punitive damages case, but it is instructive and worth a read.

For another instructive analysis, here's Jeff Mehalic's take on the decision.