Document XzgDRLqdgOw0G1OXMp5k4Mx2B

AR226 - 1S/0 IN THE CIRCUIT COURT OF WOOD COUNTY. WEST VIRGINIA JACK W. LEACH, etl, v Plaintiffs, aE.D1.elDawUaPreONcoTrpDorEatNioEnM, OURS AND COMPANY, Defeadaat. CIVIL ACTION NO. 01.C-608 (Qudge nil) N) Vv F N On April 18,2003, came Plaintiffs, by their counsel, Robert A. Bilow, Larry A. Winter, and R. Edison Hill: Defendant E. 1. du Pont de Nemours and Company ("Dupont"), by its counsel, Laurence. Janssen, Stephen A. Fennell, Diana Everett, and Heather Heiskell Jones; and Defendant Lubeck Public Service District, by its counsel, John R. McGhee, for hearing on PlaintiTs' Motion for Partial Summary Judgment Against DuPont on Liability for Plainiffs Medical Monitoring Claims ("Plaintiffs' MS)"), and pursuant to discussions at the said hearing the Court also heard and considered Plaintifls' MotionforInjReulienfAgacinsttDuiPonvtmaededuringthe said discussions. As explained below, the Court, having considered the filings, motion for injunctive relief made during the hearing and arguments ofthe partes on eachofthese issues, hereby DENIES Plaintiffs' MS and GRANTS Plaintiffs' Motion for InjunctiveRelief Against DuPont EYRE m_---- CaONTAIN NO CBI MAY - 12003 AERRCE ONOSRT 000523 FLAINILEES' MOTION FOR PARTIAL `The Court, having considered the pleadings and filings of the parties in supportofand in opposition to Plaintiffs' MSJ and Plaintiffs' Motion for Injunctive Relief Against DuPont, and having considered the arguments and representations ofcounsel during the April 18, 2003, hearing on these Motions, hereby FINDS us follows I. Ammonium perfluoroocuunotte (vk/aAPFO/PFOA/FC-143/C-8) (hereinafter "C-87) is toxic and hazardous to humans and is biopersistent, meaning that i i absorbed into and persists in the blood of humans exposed to C-8 2. DuPont has tortiously contaminated the drinking water of the Class members! with C8 without thepermission ofthe Class members by virtue ofDuPont's past and continuing releases of C-8 from DuPont's Washington Works Plant in Wood County, West Virginia. 3. The Class members have been unwittingly exposed 0 C-$ from DuPont through the unauthorized presenceof C-8 intheir drinking water, which, because of the biopersistent nature of C-8, necessarily results in the unauthorized presence of C-8 in the bloodofthe Class members. 4. The legal test for determining whether medical monitoring willbeprovided in West Visginiu for those tortuouisly exposeod a hazardous substance is setforth in Bower v Westinghouse Elec. Corp., 206 W. Va. 133, 522 S.E.24 4241999), in which the West Virginia Supreme Court of Appeals held that medical monitoring will be provided where theplaintiffproves that defined"aTshe"aClolunpterpsroenvsiowushloysecerdtriifinekdintghiswactaesre tios porrocheaesd baesean cclaosnstaamcitinoanteodnbweihtahlfaomfmoanCilausms poearpflouoodroCooctuanntcaytWee(sst/kV/iur/g"iCn-a4.") (aOnrrdisbtutoanblCelaossreelneatsieas tfiroomnDaunPdoRnet'lsieWdasMhoitnigontso,n aWtor(kasprPillan1t,' 2 000524 (1) he or she has. relative to the general population, beea significantly exposed;(2) to upsroavpernoxhiamraatredoruessusltubosfttanhcee;e(x3p)ostuhrreo,ugphlatihnetitfofrthiaosusscuonrdeudctoafn tihnecdreeafseenddarits;k.(o4f) contracting a serious latent disease (5) the increased risk of disease makes it reasonably necessary different from what for the would pbleainptriefsfctroibuenddeirngothpeeriaobdsiecncmeediocfalcxepxoasmuirnca:tioannsd (6) monitoring procedures exist that make carly detectionof a disease possible. Rene, 206 W Va at 135. 522 SE 24 a1 426. 5. Inopposing Plaintiffs' MS] seeking medical monitoring forthe Class exposed 0 C- in their drinking water, DuPont ssscricd that Plaintiffs had fauled to establish thar the exposur of the Class is "significantly" above that found in the general U.S. population, within the meaning of theDower medical monitoring test, because the Plaiaiis "haveprovidedno evidence that they have sctually been exposed to C-8 at any level, much less ata significant one" and that the "best way to establish actual exposure is by testing the level ofC- in their blood." (DuPont's Memorandum in Opposititoon Plainiffs' MS, at9) 6 InresopPolaniostiety argument hatDuPonoewn'C-s8 blood model from October 2001 is sufficient tv accurately predict levels ofC-8 inthe blood of Class members over 1000 times higher than that reported to be present in the bloodofthe general US. population without having to perform actual C-8 blood tests, DuPont argued that its own C-8 blood model is bused upon unproven assumptions, s inaccanducarnnaotbtereeli,ed upar to produce accuralc estimates ofC-8 blood levels in the Class. 7. In response to DuPont's argument that DuPont "has actively pursucd" C- blood testing, Plaintiffs explained and DuPont agreed that, although DuPont has agreed to test the blood ofthe individuslly-named Plaintiffs for C8, DuPont has refused Plaintiffs' request that DuPont make C-# blood testing available to all Class members who request it. 2 000525 8 Dupont aiready has an amangement with at east one laboratory to perform C-& blood testing for its own employees and has heen offering and paying for such tests among its own employeesformany years 9. DuPonthasnot idetonlutintfifsafninidepeenddent laboratory that can test for C- levels in human blood using the same methodology used by DuPen and its contractors that is not already under contract with or otherwise working for or being paid by DuPont, and. it would be prohibitively expensive for Plaintiffs 1o cquip an independent laboratory te perform the type ofC-% blood tests that DuPont insists is needed. 10. Although DuPont continues 10 actively and intemionally release C- from its Washington Works Plant iato the air and water, it has represented to the Cours that there are no alternatives 0 using C-8 in anyofthe Washington Works Plant's manufacturing operations and has told the Court that there is no way for DuPont Lo prevent its C-8 emissions from gerting into the Class members" drinking water. DuPont also has representedfo the Cours that itis in the process of dramatically decreasing the amountofthosc emisinsciompoarnisosn with past emissions levels, which DuPont further represents should decrease the amount of future C- exposure to the Class members 11. Because DuPont claims 1 be actively reducing its emissions of C-8 into the environment while this case is pending and claims that the level of C-8 in human blood decreases over time as exposure decreases, DuPont's effective control over the C-8 blood testing process and continuing refusal to arrange for C-8 blood testiagofthe Class members will cause immediate and imeparable harm to Plaintiffs' ability to preserve and prevent the loss of evidence of the Class - 000526 members' current and past C- cxposure levels, herebydepriving PIaatifs ofte ev dence Dubont insists is nocessary for Plaintiffs to previ! on the merits of their medical monitoring claims, 12 Although the parties dispute the extent to which increased risk of ceruin serious Jatenthumandiseases detected by DuPont among its Washington Works employees, such as kidney and bladder cancer, heart disease, and diseases of blood and bluod-forming organs among male canployees, is linked to C-8 exposure, DuPont's continuing refusal to make C-8 blood testing available to the Class is causing immediate and imeparable harm tothe Class members" bility tv accurately and timely assess whether the level of C-8intheir blood warrants medical anteation for such diseases, thereby depriving the Class of medical information and Kiowiedge that may be essential to proper diagnosisof nd treatmentof uny physica injuries actually caused by their C- expose. 13. Because DuPont alrcady has x working relationship with at least one laboratory that can perform husian C-8 blood test analysis according the methodalagy adopted by DuPant and DuPont already has adapted procedures for having such C-8 blood tests performed for a large number of individuals through ts efforts to tem C-8 blood levels among is own employees, there is litle likelihood of unreasonable harm to DuPont from requiring DuPont 10 offer the same C-8 blood testotmeimbnergs ofthe Class, particularly whe that data is whatDuPont insists is necessary to decidethe merits ofPlaindfls medical monitoring claimsand the merit of DuPont's defense to such cats. 16. Because ofthe potential widespread public health concetns implicatbeyd DuPont's C-8 conaminationof public drinking water supplies, the inabilityof the public to detcrmine the extent of their blood contamination based upon exposure to DuPont's C- without the usc of 5 000527 Dubont's blood model or the assistanceof DuPant or its blood testing contractors who cffictively control the C-8blaod testing process. and the imminea: potential loss of the evidence that DuPont sists is relevant to determining the extentof public exposure to DuPoRL's contamination (assuming DuPont's argument that its own C- blond model is inaccurate), requiring Dubont to make suck tesung available to tae Class 1 clearly within the public interest 15. The legal standardforgranting injunctiverelicf inWestVirginia, pursuant to Rue G5 of the West Virginia Rules of Civil Procedure, was recently summarized by the West Virginia Supreme Court of Appeals as follows: Thegranting of ninjunwhecthterimanodanto,ryorpreventive, callsforthe exercise ofsound judicial discretion in view of all the circumstances of the particular vase; regard being had to the natureofthe coniruversy. the object for which the injunction pisarbteiiesnginsvooulgvhetd,ianntdhetahewacrodmoprardaetniivael ohfatrhdeshwiript.orStiantceoenxveen.ienDcoentloetyvh.eBraeksepre,ct1i1v2e W.Va. 263, 168 SE. 154, a Syl. pt. # (1932); aceord. Jefferson County Board of Educatton v. Jefferson County Education Ass'n, 183 W.Va. 15. 393 SE.2d 653 (W.Va. 1990); State ex rel. East End Assoc. v. McCoy, 198 W Va. 58,481 SE2d 764 (1996) Camdan.Clark Memorial Hosp. Corp. v. Turner, No. 30459, 2002 W Va LEXIS 240, at *11-12 (W.Va. Dec. 6, 2002). In making this balancing inquiry, the Fourth Circuit has held that a court should consider, "in flexible interplay," the following four factors: (1) the likelihoodof irrcparable 5arm to the plaintiff without the injunction; (2) the Likelihood of harp to the defendant with an snjunction; (3) te plaintitls likelihood of success on the merits; and (4) the public interest Camden-Clark, 2002 W Va LEXIS 240, at *11-12 (referencing Marrill Lynch. Pierce. Fenner & Smith, Inc. v. Bradley, 756F.2d 1048, 1034 (4 Cir. 1985). Upon careful considerationofthe filings, pleadings, and argument of the parties in the contextofapplicable WestVirgiaia medical monitoring lawas sct forthin Bowerandthe applicable - . 000528 sandr {or summary judiament under Rule $5 ofthe West Virginia Rules of Civil Procedurethe Court CONCLUDES that there is material questionoffact indispute with respect o the issue of whether the Class has been significantly exposed to C-8 sufficient to prove Plaintiffs:medical monitoring claims, thereby precluding summaryjudgment in Paints' favor on thet issue Upon firher consideration and balancing of ail of the circumstancesof this case, including he ture ofthe controversy. the object fo which an injunction is being sought, and the comparative ardslip or inconvenience the respective parties involved, according to the standards for granting Irinetiverelief sferenced by tie West Virginia Supreme Court ofAppeals in Camden-Clark ang ender Rule 65of he West Virginia RulesofCivil Procedure, the Court futher CONCLUDES that unctive eliefiv uppropriate o require DuPont to make available andpay fo the C8 bloodtesting mthoantitDourPionngtclianismiss.ts is essential to prove a material issue of fact in dispute on Plaintiffs' medical he Cour, therefore, DENTES Plaintifs' MS) on the grounds that there is at least une misenal issue of fac i dispute and hereby GRANTS Plaintiffs' Motion for Injusctive Relief to obtain and preserve the evideace that DuPont claims is necessary to resolve his particular material issueoffact VirginiaWRHuEleRoEfFCOivRiEl,PrtahceeCdouureth6e5r:eby ORDERS the following injunciive. relief, pursuant to West 1: DuPont shall, without unnecessary delay. abiain, est, ag analyze all samples of Classmembers" blood voluntarily made avaslablteo DuPoat by such Class members pursuant to this Order 3nd shall report the results of the C-8 blood testing fo the person(s) whose blood i fisted and 10 Plats' counsel simalianeously, using such contidentality protections as are required by law KS 000529 ! 2 DuPont shall pay all costs and expenses associated with obtaining, testing, and analyzing te blood ofthe Class members fur C-8, alongwith al costsand expenses associated with notifying the Class of the availability of the testing and all costs and expenses associated with reportitnheg resultsofthe tests to the Class membersand Plaimtiffs' counsel. 3: Notice shall be given 10 the Class through publication 1 Tie Murietts Times, The Forkersburg News. The Parkursburg Sentinel, and UA Today containing the language of the two fsmliacly preceding paragniphsofthis Order of summaryof he same, soa with instructions Order. for the Class members. regarding the times and locations where `such testing will be performed.Cost of the Notice shall be paid by DuPont us indicated in the iminediately preceding paragraph of this 4. Implementationofthis injunction Ordershallbestayed foar period ofRL days from catry of this Order (the "Stuy Period") to allow the parties 1 confer regarding submission io the Court ofan uyreed order providing for the specific terms and provisions forthe prompt implementa. tion ofthis Order, or. in the eveat the parties fail 10 reach Agreement upon implementationofthis Order,to allow DuPont to file an appeal,ifso desired, ofthis injunction Order. Ifno appeal is filed within the Stay Period, the injunctivereliefprovided in this Order shall become effective and AC RLE somen s, ENTERtig PH dayG of ail 2003 . immediately enforceable at the conclusion ufthe Stay Period, ARE SRI $= Se seen Cl Coun eros Coun, wen Vie Pl, Chon of CourzWr sVigina = 000530 PRESENTED BY HRarTrdyiGs.onDeHliltlzl(erW(VWSVBS#B17#3948)1) HNIoLrLt,hGPaEtTeERBSuOsiNn.eCsAsRPVaErRk, BEF & DEITZLEK. PLLC. 500 Tracy Way Charleston, WV 25311-1261 304-345-5667 GeralJd. Rapien TRAoFbeTr,tSAT.ETBTiIlNoUwS& HOLLISTER LLP 4Ci2n5ciWnanlatniu,tOSHwee4t,52S0u2it-e39155700 513-381-2838 LWaIrNrTyEAR. JWOiMntNeSrON(W&VHSiBt#4P0L9L4C) CPh.0a.rlBesotxon2,1W87V 25328-2187 304-345-7800 Counselfur Plainriffs . 2 suite 9 000531