Judge denies DuPont testimony, expert motions

West Virginia Record
By Jessica Karmasek

COLUMBUS, Ohio – A federal judge, for the most part, denied motions by DuPont asking the court to exclude certain testimony and experts in an ongoing mass tort against the chemical company by Mid-Ohio Valley residents who were exposed to C8 in their drinking water.

Judge Edmund A. Sargus Jr. filed two orders: one on Aug. 6, denying and affirming in part a motion to exclude expert opinions related to corporate conduct; and another on Aug. 11, denying a motion to exclude “narrative testimony.”

Both orders were filed in the U.S. District Court for the Southern District of Ohio, weeks after Sargus filed two other orders denying DuPont’s motion for summary judgment and its proposed causation experts.

Sargus, in his Aug. 6 order, ruled that he would not prohibit the plaintiffs’ experts on corporate conduct – six in all – from testifying.

DuPont, in its motion, argued that any expert testimony “offering opinions as to corporate intent and motives, and measuring corporate conduct against internal aspirations and inapplicable ethical standards” is not a proper subject of expert testimony and should be excluded from trial.

The company argued that the plaintiffs’ experts would opine on their characterization of DuPont’s knowledge from reading “uncomplicated” historical documents and then measuring that conduct against various “inapplicable” standards.

DuPont contends doing so is not helpful to the jury and is “misleading, confusing and cumulative of other evidence.”

Sargus disagreed.

“The historical documents to which DuPont refers include the factual record that contains evidence of DuPont’s conduct that began over 50 years ago and involves well over a decade of complex litigation, millions of documents, hundreds of witnesses operating in dozens of different regulatory, scientific and technical fields, including, among others, toxicology, epidemiology, risk assessment, medicine, occupational health, regulatory compliance, public health and chemical industry practices and policies,” the judge wrote in the 37-page order.

But the judge noted that the plaintiffs’ experts – in particular, Dr. Michael B. Siegel – cannot speak to the company’s intent.

DuPont argued in its motion that Siegel’s testimony should be excluded, in its entirety, because it speculates about the company’s motive, intent and/or state of mind and “makes legal connections” that should be reserved for the jury.

Sargus agreed that a “significant portion” of Siegel’s testimony is excludable.

“Dr. Siegel’s opinions as to what he ‘would consider to be an exemplary company, a good corporate citizen or a company with a strong sense of social responsibility… the minimum level at which [he] would expect a company to act if it has a reasonable degree of concern for the health of its surrounding community’ are ones appropriate for a jury to decide,” the judge wrote.

“There is no special expertise necessary to make these determinations.”

In his Aug. 11 order, Sargus said he would not exclude the opinions of two of the plaintiffs’ experts, James S. Smith and Robert W. Johnson.

Smith holds various degrees in chemistry and is a chemist at and president of Trillium Inc. Johnson is an economist. Smith’s testimony focuses on the scientific methods DuPont used to support its decision about the release of C8. Johnson’s testimony focuses on the financial condition of the company in the event the trial goes to a punitive damages phase.

DuPont argued that both experts’ testimonies are “unreliable.”

“Dr. Smith’s opinions rest on a reliable foundation and the method he utilized, i.e., drawing conclusions from a set of observations based on extensive and specialized knowledge and experience, is the same appropriate methodology used by Dr. (Shane A.) Snyder,” Sargus wrote, comparing Smith to DuPont’s own expert.

The judge said Johnson could be questioned about the meaning of SEC filings and proxy statements presented to the jury and then be subject to cross examination.

“The court think it is better for the jury to understand what the documents mean through the questioning of Mr. Johnson by counsel for both parties,” he wrote in the 15-page order.

DuPont spokesman Daniel Turner declined to comment on the orders. He said in an email it would not be “appropriate” for the company to comment given that the trial is set to begin in September.

The first of the MDL lawsuits to go to trial is scheduled for Sept. 14 in Columbus and is expected to last four weeks.

The lawsuits ask for compensatory and punitive damages and payment of plaintiffs’ costs for the injuries caused by what is described as DuPont’s “reckless and negligent” contamination of drinking-water supplies.

DuPont has used C8, also known as perfluorooctanoic acid or PFOA, in making nonstick and stain- and water-resistant coatings for products – including pots, pans, carpets and clothes – for more than 50 years. Court records show DuPont scientists issued internal warnings about C8 as early as 1961.

The litigation between DuPont and the plaintiffs began in 2001 in a class action lawsuit in Wood County Circuit Court and ended in November 2004 when the parties entered into a class-wide settlement.

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