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May 8, 2004

The Parkersburg News and Sentinel (West Virginia)

DuPont papers will be unsealed

By PAMELA BRUST

PARKERSBURG - As the result of a ruling by the West Virginia State Supreme Court on Thursday, three previously sealed DuPont documents, which the company contended were inadvertently provided to plaintiffs in a pending Wood County Circuit court C8 case, have been unsealed.

It was DuPont's position the three documents were privileged because they were opinion work product of DuPont attorneys and were inadvertently produced in the discovery process of the class action lawsuit filed in 2001 against DuPont by some Lubeck/Washington area residents. That civil action alleges the company intentionally withheld, misrepresented information concerning the nature and extent of the human health threat posed by the C8 from DuPont Washington Works plant in drinking water supplies. Plaintiffs claim C8 damaged their health and increased their risk for additional health problems. Trial is scheduled Sept. 20.

DuPont maintains there is no evidence of any harmful human health effects associated with C8. Ammonium perfluorooctanoate, or C8, is a detergent-like material DuPont uses in manufacturing fluoropolymers such as Teflon.

"DuPont is disappointed in the court's decision. The documents in question offered individual opinions that do not represent the opinion of DuPont," said Tom Flaherty, counsel for DuPont.

"The opinions expressed by Mr. Bowman were made before the Leach litigation (the pending circuit court case) was filed. They were solely his opinions based on limited information and were made to encourage discussion and debate. His memo does not represent an informed position of DuPont on the C-8 (PFOA) issue," Flaherty said.

"DuPont is confident that the trial will provide an opportunity to rebut the claims and allegations made in this case with the facts and science.

DuPont believes that once a jury hears those facts they will conclude that C8 at the trace levels found in the community does not harm the members of the community or the environment," Flaherty said.

One of the previously sealed documents, referred to as the "Bowman Memo," is a November 2000 communication from DuPont attorney John R. Bowman and, according to court documents, was prepared more than a week after the Lubeck Public Service District sent a letter to its customers notifying them C8 had been found in their drinking water.

In part, the memo states: "In view of the interest the letter is getting I think we need to make more of an effort to get the business to look into what we can do to get the Lubeck community a clean source of water or filter the C8 out of the water."

The memo notes attorneys in other water contamination suits informed Bowman "it is less expensive and better to remediate or find clean drinking water for the plaintiffs than fight these suits."

"We are going to spend millions to defend these lawsuits and have the additional threat of punitive damages hanging over our head. Getting out in front and acting responsibly can undercut and reduce the potential for punitives," according to Bowman.

"Our story is not a good one, we continued to increase our emissions into the river in spite of internal commitments to reduce or eliminate the release of this chemical into the community and the environment because of our concern about the biopersistence of this chemical," the memo states.

The "Environ Memo" is a communication between other DuPont counsel relating to litigation. Environ was DuPont's C8 risk assessment contractor.  

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