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DuPont Loses Bid for Mistrial After $50 Million PFAS Verdict

Dec. 31, 2020, 8:21 PM

A federal judge won’t order a new trial in a closely watched PFAS case against DuPont that resulted in a $50 million verdict against the company earlier this year.

The U.S. District Court for the Southern District of Ohio on Thursday denied DuPont’s request to declare a mistrial after a jury in March sided with cancer survivor Travis Abbott and his wife, Julie, awarding them damages for exposure to a type of PFAS the company produced at a facility along the Ohio River.

Per- and polyfluoroalkyl substances are known as “forever chemicals” for their ability to build up and stick around in the environment. Some types have been linked to cancer and other serious health problems. DuPont’s failed mistrial motion is the latest development in a fast-growing landscape of PFAS litigation, with hundreds of cases pending across the U.S. against chemical companies and others down the supply chain.

DuPont had moved for a mistrial almost immediately after the jury issued the $50 million verdict against the company, accusing Judge Edmund A Sargus Jr. of injecting bias into the case.

Sargus rejected the accusation Thursday, concluding that “the jury deliberations were not unconstitutionally coercive, and declaration of a mistrial is not appropriate.”

Plaintiffs’ attorney Jon C. Conlin called DuPont’s mistrial bid “a Hail Mary long-shot from the start” and said “the court did a thorough job explaining why there was no mistrial on the claims made by DuPont.”

A DuPont representative didn’t immediately respond to a request for comment.

Collection of Suits

The Abbott case is part of a long-running collection of lawsuits from Ohio and West Virginia residents who say DuPont’s manufacturing facility near Parkersburg, W.Va., contaminated their water.

The company in 2017 reached a $670.7 million settlement to end more than 3,000 cases from individuals alleging they became sick from exposure to C-8, a type of PFAS, from the facility. More than 100 additional cases have since hit the docket, wrapped together in a multidistrict litigation proceeding.

The Abbott case and a similar one involving cancer survivor Angela Swartz were tried before a jury in early 2020. The jury awarded damages to the Abbott couple and deadlocked on claims in the Swartz case.

Additional cases from the C-8 litigation were set for trial earlier this year, but the Covid-19 pandemic has delayed them. Hundreds of other cases are consolidated in multidistrict litigation in South Carolina, focused on types of PFAS present in firefighting foam.

Fair Trial

DuPont’s complaints about the Abbott verdict centered on a claim that the judge was so “coercive” in his instructions to a deadlocked jury that the court violated the chemical giant’s right to a fair trial.

After the end of the five-week trial, the judge called the disagreeing jurors into the courtroom and gave instructions, upheld by a court of appeals, directing them to try to come to an agreement. He added at the end of his instructions: “But remember, too, that if this case had to be tried again, it would be at great expense and great emotional harm to all the parties in this case, defense and the plaintiff.”

DuPont argued this was impermissibly coercive. But Sargus ruled that his addition didn’t break the law because he said in the instructions that none of the jurors should “just change your mind because other jurors see things differently or just to get the case over with,” and that his instructions were “not meant to rush or pressure you into agreeing on a verdict.”

DuPont also said the court improperly questioned the juror who deadlocked the group, calling her into the courtroom to determine if she wasn’t deliberating with the others. The DuPont legal team said it saw the dissenting juror crying before Sargus instructed the group to try to reach a consensus—something none of the court staff said they saw.

But DuPont agreed to the procedure for questioning the juror. And even if the juror were crying, Sargus said, DuPont didn’t inform the court of the juror’s alleged emotional distress during the proceedings, and therefore that couldn’t be a cause for mistrial.

The case is Abbott v. E. I. du Pont de Nemours & Co., S.D. Ohio, No. 2:17-cv-998, 12/31/20.

To contact the reporters on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com; Alex Ebert in Columbus, Ohio at aebert@bloomberglaw.com

To contact the editor responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com

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