September 10, 2008

Court Asked to Add Dozens to DuPont Case

By Ken Ward Jr.

Nearly 200 Harrison County landowners say that they were wrongly excluded from a lawsuit aimed at forcing DuPont Co. to clean up pollution of their property by the company's former zinc smelter.

Lawyers for the landowners asked the state Supreme Court on Tuesday to consider overturning a circuit court ruling that dismissed them from the case.

Ed Hill, lawyer for the landowners, said a favorable ruling would add about $8 million to the $55 million cleanup already ordered for the community of Spelter.

Hill told justices that it doesn't make public policy sense to clean up some of the area's contamination, and leave an estimated 40 percent of the area polluted.

"If these properties are left un-remediated, [because of] the air currents and wind, they are going to continue to contaminate those properties that are cleaned up," Hill said.

Hill presented the first of three related appeals of last year's $381 million award against DuPont in the Spelter smelter case.

Harrison County jurors ruled against DuPont in a case that argued the company illegally polluted the community with lead, zinc, cadmium and arsenic from the smelter, and then tried to mislead regulators and regulators about the extent of the contamination. The award included a $55 million cleanup, a $130 million medical monitoring program, and $196.2 million in punitive damages.

DuPont has filed two appeals. One seeks a new trial, while the other challenges a circuit court ruling that DuPont should cover all potential liability for another of the site's former owners, T.L. Diamond. Earlier this week, the court declined DuPont's request to consolidate the three appeals.

Gov. Joe Manchin filed his own brief to urge the court to hear DuPont's appeal of the jury verdict.

During Tuesday's court session, justices considered only whether to hear an appeal of Harrison Circuit Judge Thomas A. Bedell's ruling to exclude some of the Spelter property owners.

At the start of trial last year, Bedell ruled that DuPont had immunity from suits by those landowners. The judge cited waivers that were signed in the 1920s to resolve lawsuits at the time by local farmers against Grasselli Chemical Co. Grasselli owned the smelter from 1919 to 1928.

Farmers had filed a series of nuisance suits against Grasselli. They alleged that zinc-oxide and sulfates from the smelter were reducing the fertility of their soil. Some farmers won their cases, but the Supreme Court ruled at the time that future suits might also be possible. To protect itself from future suits, Grasselli signed deals with landowners that attached lawsuit waivers to property deeds. These deals purported to "grant a perpetual easement" for the company to "discharge substances onto" the properties involved.

But current landowners now allege that Grasselli hid from the former landowners a 1919 report that detailed the extent of possible contamination. Instead of making that information known, the landowners say, the company continued to publicly argue that the smelter was causing no damage.

Hill told justices that Bedell wrongly did not allow jurors in last year's trial to consider evidence about whether the extent of the contamination was contemplated by the 90-year-old deeds.

Justice Brent Benjamin recused himself from the case because his former law firm represented T.L. Diamond. Mercer Circuit Judge Derek Swope took Benjamin's place.

The court did not immediately announce whether it would hear the appeal.

Reach Ken Ward Jr. at [email protected] or 348-1702.

Originally published by Staff writer.

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