September 23rd, 2015|
The first test case that could help resolve more than 3,500 personal injury and 37 wrongful death claims against the DuPont Chemical Company began last week in federal court in Columbus, Ohio.
Jurors in Columbus started hearing the case of 59-year-old Carla Bartlett, who developed kidney cancer in 1997 from drinking C8-contaminated water. Bartlett’s is one of six bellwether cases expected to guide attorneys on both sides of the courtroom on how the rest of the claims will proceed.
The suits allege that DuPont knew about the health risks posed by a chemical produced at its Washington Works plant near Parkersburg, West Virginia for decades, all the while continuing to dump this chemical into the adjacent Ohio River and allowing it to contaminate the water supply of some 80,000 people in Ohio and West Virginia.
C8, or perfluorooctanic acid, is the chemical in question. It is used to make Telfon and other water- and oil-repellent products. Owing to its very stable chemical composition, C8 persists indefinitely in the environment. Its use has proliferated globally since the 1950s, when its practical application in non-stick cookware was discovered. According to a 2007 analysis of data by the Centers for Disease Control (CDC), trace levels of C8 exist in the blood of 99.7 percent of Americans.
Following an extensive epidemiological study of residents in the vicinity of the Washington Works plant, as well as several other studies, C8 was linked in 2012 to these six medical conditions at exposure levels of at least 0.5 parts per billion (ppb):
- Testicular cancer
- Kidney cancer
- Thyroid disease
- High cholesterol
- Ulcerative colitis – a form of bowel disease
- Pregnancy-induced hypertension – which may cause seizures, kidney failure, miscarriage, and birth defects
What did DuPont know?
DuPont’s defense is that it did not realize that C8 posed a health risk at the time Bartlett and the other plaintiffs were exposed. However, hundreds of internal company documents demonstrate that DuPont employees, including top executives, had long known of the health problems associated with C8, roughly since its introduction to market, but especially from the late 1970s onward. Moreover, documents suggest an organized, concerted effort by DuPont to deceive the public and its own plant workers of these problems.
Starting in the late 1970s, DuPont medical staff began reviewing medical records from employees working with C8. This work was spurred in part by an increasing number of studies of C8 in animal test subjects showing a clear relationship between exposure to the chemical and adverse health consequences, including death. In response to a 1981 study conducted by 3M (a Minnesota-based company also manufacturing C8 at the time) of pregnant rats exposed to C8 that found increased incidence of birth defects, DuPont began tracking a small group of pregnant employees who had been working with C8. This research found one in eight babies born to these women had birth defects; DuPont filed this study as confidential and quietly moved all women out of work areas where they might be exposed to C8.
At the same time that DuPont was coming to terms with occupational health risks at the Washington Works plant, it was also discreetly collecting water samples from the surrounding region to test for C8 contamination. This early water testing confirmed elevated levels of the chemical outside the plant.
Testifying as an expert witness in the Carla Bartlett case on September 16, epidemiologist Dr. Michael Siegel described how DuPont drafted standby press releases as early as 1984 in the event that the company decided to go public with its findings on C8 – or if they were otherwise leaked.
These press releases reflect a growing sense of anxiety among DuPont’s leadership about the company’s potential liability stemming from the health risks posed by C8 in its West Virginia plant workers as well as among members of the general public.
In May 1984, DuPont executives convened at corporate headquarters in Delaware to consider the C8 issue. They took into account the perspectives of the company’s various divisions, including its legal and medical departments, which they predicted “will likely take a position of total elimination,” according to minutes recorded during the meeting. These minutes also report that DuPont executives considered possible measures to reduce C8 emissions at the company’s plants, including installing scrubbers to reduce airborne emissions. However, these initiatives were scuttled because executives believed the additional costs and efforts would not substantially reduce DuPont’s liability. The notes read:
“Liability was further defined as the incremental liability from this point on if we do nothing as we are already liable for the past 32 years of operation…From a broader corporate viewpoint the costs are small.”
A standby press release from 1984, drafted in the weeks following this meeting, foresaw a hypothetical reporter’s question on whether DuPont’s decision not to invest in a system to reduce C8 emissions was based on money. This internal document instructed the company respondent to answer with a terse “No.”
Considered altogether, internal DuPont documents stretching back to the 1970s show that the company was well aware of the dangers posed by C8. Not only did they choose not to inform the public and to bury evidence of C8 health risks, but they also doubled down on C8 production at the Washington Works plant – from the early 1980s onward, DuPont’s use and emissions of C8 increased, peaking in 1999. It was only around 2000 when DuPont started receiving its first lawsuits over C8 contamination that residents around the West Virginia plant started to become aware of the lurking danger they had been living with for nearly half a century.
DuPont’s collusion with government regulators
Another central argument in DuPont’s defense is that the company was merely following the existing law on C8, and that if the chemical were truly dangerous, government agencies would have regulated it. Consequently, DuPont was acting within its rights to discharge C8 directly into the atmosphere and dispose of the chemical into the Ohio River and unlined ponds and landfills, where it filtered down to the water table. This argument assumes that government regulators, at the state and federal level, were able to properly fulfill their mandate as a neutral party to protect public health and safety. The hollowness of these claims stands out when viewed next to the evidence of DuPont’s systematic campaign to effectively neuter regulatory action.
In 2001, as public scrutiny over C8 was building, the West Virginia Department of Environmental Protection (DEP) assembled a team to establish a safety threshold for the chemical. Half of the panelists on the team had either worked directly for DuPont or a nominally independent group called Toxicology Excellence for Risk Assessment, which is heavily funded by industry trade groups and whose findings on chemical safety are routinely above the thresholds provided by the Environmental Protection Agency (EPA). DuPont bankrolled most of this panel’s work.
The C8 team reported that C8-contaminated water was safe to drink at a concentration of 150 parts per billion (ppb): DuPont’s own internal safety guidelines cite a safety threshold of only 1 ppb, or 150 times lower than the DEP’s recommendation. This internal guideline was never made public by DuPont. The C8 team’s findings were announced at a town hall meeting in Parkersburg.
Following the release of the DEP’s findings, Robert Bilott, an attorney representing local residents against DuPont, started subpoenaing information used in the DEP’s C8 analysis, which he discovered was being systematically destroyed by the agency’s science advisor, Dr. Dee Ann Staats, and DuPont’s lead toxicologist for C8. West Virginia Circuit Judge George Hill intervened, ordering them to stop shredding and to turn over the remaining documents. Among the documents slated for destruction was an early assessment by the DEP calling for a safety limit closer to 1 ppb for C8 – a figure that Staats maintains did not reflect all the relevant data. However, even 1 ppb was later determined to be unsafe for human health by the EPA.
DuPont’s brazen efforts to influence state environmental safety regulators in West Virginia reflect its strategy at the federal level as well. A number of high-level DuPont officials have held key positions at the EPA. This movement between government – often regulatory bodies – and industry is referred to as the revolving door, and it is a perfectly legal practice in the United States. Senior public officials face only a one-year prohibition from lobbying or contracting in their former field. Illustrating the revolving door in practice: Michael McCabe served as deputy administrator of the EPA until 2001; in 2003, he started work as a lead consultant for DuPont’s communications and C8 strategy. Linda Fisher succeeded McCabe at the EPA; she left the agency in June 2003, shortly thereafter becoming an instrumental asset for DuPont’s C8 defense. During this time, DuPont also had a former EPA director, William Reilly – who led the agency from 1989 to 1993, sitting on its board of directors.
According to McCabe’s own testimony during a 2007 deposition, DuPont benefited from the insider information individuals like him could provide on what regulators were thinking. Unlike the Food and Drug Administration (FDA), which is charged with regulating prescription drugs, the EPA lacks the legal authority to prevent a substance or chemical from coming to market before its potential human health risks are known. Additionally, even when the dangers of a chemical have been established, the EPA is limited in what it can require of industry, and tends to rely upon voluntary concessions by companies under its supervision. The EPA is reliant on the discretion of manufacturers to provide data used to craft its regulatory policy. To illustrate: most of the animal studies with C8 conducted during the 1970s and 1980s were reported to the EPA; however, DuPont’s investigations into occupational and environmental exposure hazards were designated confidential, and thus, were not shared with the agency.
Leading up to its 2006 voluntary agreement to phase out C8 by 2015, DuPont worked extensively with the EPA to set up terms preferable to the company’s interests. In October 2005, McCabe made a presentation on behalf of DuPont to the EPA. In it, he requested the EPA “to restate the safety of products and no health effects,” acknowledge DuPont’s leadership in willingly removing C8 from market, and push other manufacturers of the chemical to follow in kind.
Late in 2005, as DuPont was finalizing its agreement to phase out C8 and research the extent of contamination around its West Virginia plant, the EPA fined DuPont for unlawfully withholding information on the chemical’s human health risks. The fine was $16.5 million: $10.25 million for violating federal environmental statutes and $6.25 million “to perform Supplemental Environmental Projects.” The EPA boasted that the settlement was the largest civil administration penalty ever obtained by the agency; however, it is a fraction of the maximum $300 million the EPA technically could have pursued. The $16.5 million fine also pales in comparison to the $1.6 billion in quarterly sales DuPont’s plastics division earned at the time. In fact, the EPA fine amounted to only about one day’s worth of the division’s sales.
In return for DuPont’s concessions – and to satiate the company’s concerns about publicity fallout over C8, the EPA lived up to its part of the bargain and released a statement on January 25, 2006 saying, “to date EPA is not aware of any studies specifically relating current levels of PFOA [C8] exposure to human health effects.” However, this was followed less than a week afterward by a draft report by an EPA Science Advisory Board that found C8 to be a likely human carcinogen. In response to the release of this report, DuPont reached out to the EPA, seeking the agency to help with damage control. An internal DuPont email from company vice president Susan Stalnecker reads:
“In our opinion, the only voice that can cut through the negative stories, is the voice of the EPA. We need the EPA …to quickly (like first thing tomorrow) say the following: Consumer products sold under the Teflon brand are safe.”
The EPA performed as requested and issued a statement on March 2, 2006 assuring the public that Teflon-coated products were safe to use and did not present a risk of C8 exposure. “The agency does not believe that consumers need to stop using their cookware, clothing, or other stick-resistant products.” This statement would later be rebutted by the EPA’s own research in a 2009 study of 116 consumer products, which found some of these products are indeed a source of C8 contamination.
Naturally, EPA and DuPont officials deny the existence of a quid pro quo between the regulator and the company. Partial explanation for the EPA’s conciliatory treatment of DuPont – and other companies the agency is responsible for regulating – could be attributed to the limited enforcement powers of the EPA. Given this, it makes some sense that the EPA is inclined to cut deals with companies to achieve regulatory results like removing C8 from market. Even so, what is clear is that at nearly every opportunity that presented itself DuPont exploited the weaknesses of federal and state regulators, like the EPA and West Virginia DEP, to purposely diminish their ability to fulfill their public mandate to keep the public safe from a dangerous chemical. And for what? To protect DuPont’s robust profits from liability and negative publicity, regardless of the human cost.
2005 settlement and science panel findings on C8
Carla Bartlett’s lawsuit and the other pending 3,500 claims stem from a $343 million settlement reached in September 2004 and approved in early 2005, in a class action lawsuit filed on behalf of 80,000 local residents against DuPont, in which the company accepted that C8 was harmful to human health. As part of the settlement, DuPont agreed to install filtration systems in contaminated water districts and to provide $70 million for a health and education project for local residents. DuPont was not, however, required to pull C8 from market.
In spite of this settlement, it was far from clear at the time that DuPont would be held fully accountable for its actions. The thousands of people with health problems allegedly caused by C8 could only receive compensation under the settlement if a DuPont-backed research group found that a probable link existed between their diseases and C8. This was particularly problematic because determining these links requires larger pools of data than typically can be collected from a single rural community. Harry Deitzler, a Parkersburg attorney who serves as a local liaison to the plaintiffs, sums up the problem:
“I knew the reason DuPont settled the case and agreed to assign this panel of epidemiologists was because they didn’t think they were ever in this lifetime going to find links.”
The plaintiffs ended up finding a solution to this problem by using the $70 million health and education fund created by the settlement to sponsor an epidemiological study that ultimately managed to interview and collect blood samples from 69,000 local residents, or 80 percent of the people living in affected water districts.
A separate group created by the 2005 settlement, the C8 Science Panel, used the results of this health study along with its own studies, which have been published in peer-reviewed scientific and medical journals, to develop independent conclusions on the effect of C8 exposure on human health. After seven years and $33 million spent, the C8 Science Panel released its complete findings in 2012. As reported at the beginning of this writing, this panel found a probable link between C8 exposure of at least 0.5 ppb (levels which were recorded in the affected water districts) and testicular cancer, kidney cancer, thyroid disease, high cholesterol, ulcerative colitis, and pregnancy-induced hypertension.
Under the terms of the 2005 settlement, DuPont cannot dispute the findings of this panel. In Carla Bartlett’s case, while DuPont admits that C8 exposure can cause kidney cancer, the company denies that it was the specific cause of Bartlett’s particular case of kidney cancer. How the federal jury decides this case will set a precedent for the other claims.
The lawsuits currently being brought against DuPont have the potential to become a watershed moment in how this country regulates chemical substances. There is an analogy to be made between DuPont’s cover-up of C8’s causation of serious health problems and the tobacco industry’s efforts to discredit science linking smoking to cancer. Like with the tobacco industry, DuPont and other C8 manufacturers knew of the adverse health effects linked to their product for many years before informing the public. Likewise in both cases, the potential costs in monetary terms and human health are enormous for consumers, while huge sums of money are on the line for the companies depending on the outcomes of litigation and regulators’ decisions. Finally, both cases demonstrate the difficulty that often comes with holding big actors accountable.
Interestingly enough, DuPont hired in 2003 the same product defense consultancy, the Weinberg Group, which helped orchestrate the tobacco industry’s strategies in the 1980s and 1990s to combat regulatory action and litigation, and bolster its public image.
However, the case of DuPont and C8 is exceptional in one important quality when compared to big tobacco: consumer choice. While the tobacco industry did its best to avoid regulation and mislead the public – and while secondhand smoke is a real risk, at some point, individuals using tobacco products did make a choice to use those products. DuPont did not give consumers a choice. The people living in West Virginia and Ohio, as well as the 99.7 percent of Americans whose blood contains C8, had no option but to use the water coming from their taps, putting their trust in the system that this water was safe.
Cory Watson Attorneys has taken a lead role in the C8 lawsuits. Follow these links, here and here, for more information on our firm’s involvement in the litigation.
If you are interested in finding out more about C8 and DuPont’s cover-up, these two articles should be worth your time:
- “The Teflon Toxin: DuPont and the Chemistry of Deception” (The Intercept)
- “Welcome to Beautiful Parkersburg, West Virginia” (The Huffington Post)