Document ExEOpMEN9OyeD41beZRGV259x

AR226_ 151) IN THE CIRCUIT COURT OF WOOD COUNTY, WEST VIRGINIA JACK W. LEACH, etal, Plaintiffs, v. E.D1e.lDawUarPeOcNoTrpDorEatNioEn,MOURS AND COMPANY. Defendant. CIVIL ACTION NO. 01.C-608 (Judge Hill) ORDER GRANTING PLAINTIFFS' SECOND MS OTIA ONFN OR CTI AGAO INSTN DUPS ONT On April 18, 2003, came Plaintiffs,bytheir counsel, RoberAt. Bilott, LaryA. Winter, and R Edison Hill; Defendant E. 1. du Pont de Nemours and Company ("DuPont"), by its counsel, Laurence F. Janssen, StephenA. Fernell, DianaEvere, and Heather1leiskell Jones; and Defendant Lubeck Public Service District, by itscounsel, John R.McGhee, for a hearing on Plaintiffs' Second Motion for Sanctions Against DuPont. As explained below, the Court hereby GRANTS Plainiffs' Second Motion for Sanctions Against DuPont. The Court, having considered the pleadings and filings of the partics in supportofand in opposition to Plaintiffs' Second Motion for Sanctions Against DuPont, includiag the results ofthe deposition of Gerald R. Kennedy and having taken under further advisement and consideration the asguments and representationsof counsel during the July 16, 2002 and April 18, 2003, hearings on his Motion, hereby FINDS a3 follows FEE CONTAIN NC CRI MAY - 1 2003 JI CLERKCIRCUT COURT 000532 1 DuPont violated this Court's February 1, 2002, Order by failing to produce all documents responsive to Plaintiffs' outstanding document requests within twensy (20) days. 2 DuPontviolstheidsCourt's April 4,2002, OrdergivingDuPont until Apr 19,2002, 10 complete document production, which included this Court's specific warning thatifits document production was not completed by April 19 "appropriate sanctions will be imposed on DuPont. 3. While Plaintiffs Second Motion for Sanctions was pending, DuPont acknowledged ina letterto the Court dated July 2, 2002, that Gerald R. Kenncdy, DuPont's lead toxicologist on C-3 issues, bad destroyed evidence relating to C-8 while Plaintiffs' discovery requests for that evidence were pending. 4. DuPont, without adequatejustification or excuse, engaged in spoliationofevidence through Ms. Kennedy's destructionofwritten and electronic documents as described in panugraph 3 above, and has continued to produce thousands of pages of historic C-8 documents after August 16,2002, despitethis Court's August 8, 2002, Orderthat DuPont certify that it had produced all responsive historic C-8 documents by no later than August 16, 2002 Upon careful consideration and balancoiftnhge various equitable considerations and factors `addressed by the parties and their pleadings, filings, and oral argument concerning the context and `natureofthe conduct at issue, along with the potential and actual prejudice to Plaintitls from such conduct and the evidence in the record to date relating to Plaintiffs' proposed sanctions, as clarified during oral argument on April 18, 2003, the Court hereby CONCLUDES that the monetary sanctions requestedby Plaintiffs,inaddition to the negative inferencejury instruction that this Court previously ruled would be provided at trial, are fair, equitable, and appropriate as sanctions under Rule 37ofthe West Virginia Rulesof Civil Procedure, and are hereby GRANTED. Consequently, 2 000533 itis hereby ORDERED that DuPont shall pay the attorneys fos. costs and expenses reasonably incurredby Plaintiffsinaddressing and bringing 10 the Court's antention DuPont's violations of its discovery obligations, including violationsofthe Court's February 1, 2002, April 4, 2002, and August 8,2002 Orders. Plaintiffs shall submitto the Court anaffidavit identifyingthe total amount of attomeys fees, costs, and expenses to be paid by DuPont. DuPont excepts 4nd objects to the Courts rulings herein. rn 275mCo . Q 2003. Circourigte CWo.unHitll, hJdoige County, West Virginia . . PRESENTED RY: R Edison FI.TC HHIaLLr,rGPy.EDTeEiRtszolNe,rC(aWRVvSeRB, #B9e81&a) DETZLER, PLLC. NorthGate Business Park Sat i 30C54h0a-0r3lT4er5sat-co5yn6,W6aW7yV 25311-1261 RToAbFTe,rASr.uBriilionwuts & HOLLISTLEuRp 425WalaurStreet, Suite 1800 Cincinnati. OH 45202-3957 513.381.2838 LWaIrNrTyEAR. JWOiHntNeSrO(NW&VHSIDLL#P4L0L9C4) P.O. Box 2187 Big He nse for Paint Charleston, WV 25328-2187 nesuane TCOaUeNTYoFOwFeWsoovn,isTiom: ee1. sCAreginCIOoLuEn'JOrNEmS,geCl6adrdkcoofmtaphleeGrcaeopGhyocofeoooonf Orrared GgCou anhe EE cayof a i, SCE i bciouGinvenaund(eramnydhapsrnidn.andZrAIaREt: HQT Zin J aE ta TsouElsE ail ", nie - 000534