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March 2, 2005

Charleston Daily Mail (West Virginia)

Case may yield lawyers $82 million

George Hohmann
Daily Mail business editor

Lawyers who represented Wood County residents in a class-action lawsuit against DuPont Co. could eventually pocket more than $82 million in fees and expenses.

In the suit, residents near DuPont's Washington Works alleged that C8, a substance used to make Teflon, contaminated their water supplies. The company denied any wrongdoing.

The lawyers who brought the case are entitled to at least $22.6 million as a result of a settlement announced Monday.

When the fees are divided by the amount of time put into the case by the lawyers, that works out to roughly $922 an hour.

But the sum that the firms will collect could go much higher if it is determined that there is a probable link between C8 exposure and any human disease.

If such a link is established, DuPont will be obligated to pay for medical monitoring, and the lawyers will get more money.

The lawyers will receive a sum equivalent to 25.5 percent of the cost of medical monitoring, according to the settlement.

If it is deemed necessary to carry out the most extensive medical monitoring envisioned by the settlement, the monitoring will cost $235 million and the lawyers will get $59.9 million.

Three law firms represented the residents: Hill, Peterson, Carper, Bee & Deitzler of Charleston; Winter Johnson & Hill of Charleston; and Taft, Stettinius & Hollister of Cincinnati.

It's yet to be determined how the money will be divided among the firms.

"All three kept track of their time and expenses," said Harry Deitzler, one of the lead lawyers. "There's time, there are expenses -- which is risk -- and there's effectiveness. It's just something we'll work out."

Deitzler is a former Wood County prosecutor who now serves on Charleston City Council.

The amount lawyers receive from class-action suits has been a matter of national debate. Just last Friday, President Bush signed legislation that will attempt to rein in costs associated with such cases by diverting certain ones from state to federal courts.

If the new law had been in effect, the C8 case overseen by Wood County Circuit Court Judge George Hill probably would have been transferred to federal court.

That's because the new law calls for class-action suits seeking $5 million or more to be heard in state court only if the primary defendant and more than one-third of the plaintiffs are from the same state. Most of the members of the class in the C8 case are from West Virginia and Ohio; DuPont is a Delaware corporation.

Deitzler said he worked on the C8 case for four years.

"There were a dozen or more attorneys working on this thing at any given time," he said. "DuPont, at one time, had over 50 attorneys reviewing documents that were subsequently turned over to us.

"It's just phenomenal, the amount of time. We reviewed over a million-and-a-half documents, did 35 depositions all over the country, went to the state Supreme Court twice."

Bill Bissett, executive director of WV Citizens Against Lawsuit Abuse, said, "A more than $20 million payday is obviously a good day in the office for anyone."

Bissett said he is concerned about the precedent, "which is that people are receiving awards without a proof of injury."

Of the $22.6 million already approved, more than $2 million will be for expenses. In a document filed with the court, the law firms said that as of Jan. 31 they had incurred out-of-pocket costs totaling almost $2.3 million, not including internal costs for copying, long distance telephone charges and other items.

The minimum DuPont will pay is $107.6 million. That includes $70 million to gather medical information and blood samples from an estimated 60,000 people who have been exposed to C8; $5 million to help an independent expert panel determine whether there is a probable link between C8 and disease; $10 million to provide six water districts with treatment systems designed to reduce the level of C8; and the $22.6 million for the attorneys.

Asked how his organization could object to the attorneys' fees when DuPont agreed to the settlement, Bissett said: "That's clearly a question for the lawyers at DuPont. There was obviously a reason why they decided to settle this case."

According to a motion signed by lawyers for both sides, DuPont entered into the settlement "to avoid the time, expense, and distraction of embroilment in the current lawsuit and potential future litigation and disputes relating to present, past or future C8 exposure claimed to be attributable to the operations of Washington Works."

As of Jan. 31 the three firms that brought the suit had spent a total of 21,678.89 hours on the case, according to a court document. With the settlement calling for the firms to receive at least $20 million in fees, that works out to about $922 an hour.

If the firms were to divide that amount by the same percentage as the hours they worked on the case up to Jan. 31, the lawyers at Taft Stettinius & Hollister would receive almost $10.4 million; Hill, Peterson, Carper, Bee & Deitzler would receive almost $5.6 million; and Winter Johnson & Hill would receive just over $4 million.

If the firms had lost the case they would have lost all of their out-of-pocket expenses, all of their internal personnel costs and received no legal fees.

"What was so key to me was the uniqueness of the whole thing," Deitzler said. "So many times you read about a class action where a large sum of money is paid, money is passed out, and that's the end of it. This settlement is the beginning. The real work goes from this point forward."

The gathering of medical information and blood samples from an estimated 60,000 participants "will be the largest human health study with this kind of depth ever in the history of science," Deitzler said.

"The beauty of this settlement is, the company which put C8 in the public drinking water is paying for the projects that will determine whether C8 harms humans, which is a question that the company logically should have resolved before the chemical was put into the water in the first place," he said.

"I really commend DuPont for stepping up to the plate on that issue because that's something we agreed to early on in the negotiating process."

Deitzler said he hopes that if a link between C8 and human disease is found, the amount DuPont pays out for medical monitoring is far less than $235 million.

"I hope it never gets to that number because that ($235 million) means instead of a serious health concern there's a catastrophic health concern."

If medical monitoring were required, the law firms would earn their additional fees because they would be required to track down the people entitled to the monitoring and determine how the monitoring would be implemented. It is possible there would be eligible people from coast to coast, Deitzler said.

Contact writer George Hohmann at 348-4836.

© Copyright 2005 Charleston Daily Mail