Published: July 28, 2009 11:40 pm      

DuPont cases could be tried soon

ASHLAND — The next group of cases in a massive federal lawsuit against DuPont could go to trial before the end of the year, perhaps as soon as October.

In a recent court filing, attorneys for the remaining 173 plaintiffs in the suit request that U.S. District Judge David Bunning set the next cases for trial “as soon as possible,” assuming that DuPont remains unwilling to talk settlement.

Earlier this month, a jury found DuPont grossly negligent in an Oct. 11, 2004, chemical release that sent clouds of sulfuric acid billowing from the company’s Wurtland plant.

The same jury awarded about $130,000 to six plaintiffs suing the company. However, because of the gross-negligence finding, each plaintiff also was awarded punitive damages equivalent to 10 times their compensatory damages, bringing the total award to about $1.3 million.

The suit is being tried in four phases, and the gross-negligence finding will apply in subsequent phases of the litigation. That means the only issue future juries will have to decide is whether the plaintiffs are entitled to be compensated by DuPont.

In a status report filed last week, Jean M. Goeppinger of Crescent Springs, one of the attorneys for the plaintiffs, wrote that the plaintiffs and their lawyers believe settling the case would be the best interest of all concerned, especially since the first trial “provided ample information regarding the potential settlement value” of the remaining claims.

However, DuPont apparently was not swayed by the verdict, according to the report.

“Despite the fact that the jury has now spoken, (the) defendant is still not listening,” Goeppinger wrote. “To date, it has not made any settlement offer whatsoever.”

In the absence of a settlement, Goeppinger suggests the court should try 10 cases during the next trial, using a “limited-time rubric” similar to the one employed during the first phase of the litigation.

Goeppinger also maintains that the next group of claims to be tried should be “middle-of-the-road” and permanent injury cases, rather than ones where plaintiffs are claiming minor injuries. This, the report states, “would allow the parties to more accurately access the overall value of the case for potential settlement purposes.”

The report also states that the plaintiffs’ legal team would be available to try the next case as early as Oct. 26.

DuPont has said it plans to appeal. However, under a ruling issued by Bunning, the company cannot do so until all of the plaintiffs’ claims have been resolved.

A number of those with claims pending against DuPont are police officers, firefighters and other emergency personnel who responded to the scene when the leak occurred.

The leak, caused by a cracked pipe at the Wurtland facility, resulted in the release of sulfur trioxide, a chemical that formed billowing white clouds composed of droplets of sulfuric acid, which covered much of Wurtland, Worthington and Greenup.

Specific health problems plaintiffs claim they suffered because of exposure to the chemical clouds include skin irritation, respiratory problems, burns, eye irritation, impairment of taste and smell, persistent headaches and others.

Plaintiffs’ attorneys argued that failure on DuPont’s part to address issues raised by a 1995 chemical release at the Wurtland plant was largely responsible for the same type of incident occurring again nine years later.