In re E. I. Du Pont De Nemours & Co. C-8 Personal Injury Litig.

345 F. Supp. 3d 920
District Court, S.D. Ohio·Decided August 11, 2015·No. Civil Action 2:13-md-2433·Published·Cited by 3 cases

Opinion

EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant E. I. du Pont de Nemours and Company's Motion to Exclude "Narrative" Testimony (ECF No. 2821). That Motion is fully briefed. (ECF Nos. 3200, 3548.) For the reasons that follow, the Court DENIES Defendant's Motion.

I.

Defendant E. I. du Pont de Nemours and Company ("DuPont") directs its Motion to expert witnesses who were retained by Plaintiff Carla Marie Bartlett and Plaintiff John M. Wolf, the first two Plaintiffs selected for trial ("Trial Plaintiffs") in this multidistrict litigation ("MDL"), Mrs. Bartlett's case is scheduled for trial on September 14, 2015, and Mr. Wolf is slated to try his case on November 30, 2015.

The Trial Plaintiffs both allege that they are members of the class of individuals who are permitted under a contractual agreement ("Leach Settlement Agreement") to file claims against DuPont based on six human diseases ("Linked Diseases") that they believe were caused by their exposure to ammonium perfluorooctanoate ("C-8" or "PFOA") discharged from DuPont's Washington Works plant into their drinking water. (Leach Settlement Agreement; ECF No. 820-8.) Mrs. Bartlett alleges that she suffered from kidney cancer and Mr, Wolf claims that he suffers from ulcerative colitis. Both of these human diseases are Linked Diseases. The Trial Plaintiffs allege claims for, inter alia , personal injury and punitive damages.

In its defense, DuPont asserts that it "neither knew, nor should have known, that any of the substances to which [the Trial Plaintiffs were] allegedly exposed were hazardous or constituted a reasonable or foreseeable risk of physical harm by virtue of the prevailing state of the medical, scientific and/or industrial knowledge available to DuPont at all times relevant to the claims or causes of action asserted by [the Trial Plaintiffs]." (DuPont's Answer to Bartlett Compl. ¶ 232; ECF No. 35.) DuPont offers various expert witnesses to support its defenses. Relevant to the present inquiry, DuPont offers expert testimony regarding the scientific methods it utilized to support its decisions about the release of C-8 from its Washington Works plant and its communication about the health effects of the releases of C-8. DuPont proffers Shane A. Snyder, Ph.D.,1 who offers several opinions, including the following:

*923Analytical detection limits for quantification of chemicals in water are continually evolving, and PFOA was not able to be accurately and precisely identified and quantified in ng/L concentrations in water until the 2000's, when advances in liquid chromatography and tandem mass spectrometry methods became available and applied to PFOA.
....
From before the 1980s and forward, DuPont has been proactive in continuously pursuing increasingly robust, sensitive, accurate, precise, and reproducible analytical methods for measuring PFOA in media, including water, resulting m numerous publicly-available peer-reviewed publications and contributions to the relevant science.

(Snyder Report at 11, ECF No. 2807-5)

The Trial Plaintiffs have offered James S. Smith, Ph.D., CPC,2 to provide opinions on the same subject matter. (Smith Report, ECF No. 3441-9; Smith Dep., ECF No. 165-66.) Specifically, Dr. Smith was retained to testify on:

1) the precision, accuracy, representativeness, completion, and comparability (PARCC) of the methods used by DuPont to measure the concentrations of [PFOA] in drinking water; 2) the extent of DuPont's knowledge of the PARCC of the reported PFOA concentrations in drinking water over time; 3) the actual error of the PFOA concentrations in drinking water over time; and 4) the accuracy of DuPont's representations to the public and others concerning the levels of PFOA concentrations in drinking water.

(Smith Report at 1.)

Dr. Smith concludes his Report with a summary of the opinions he reaches in his Report as follows:

1. Methods used by DuPont to measure the concentration of PFOA in water are not accurate and have led to reported levels of PFOA in drinking water supplies that are lower than the true value.
2. DuPont was aware that the PFOA levels in drinking water were reported lower than the true concentration values, and DuPont had the knowledge and expertise to correct the discrepancy in the data.
3. Prior to the water analysis performed by Exygen in 2001, the PFOA concentrations in drinking water were higher than reported by DuPont and exceeded 1 ppb on numerous occasions.
4. The information concerning the October letter to the LPSD water customers about PFOA concentrations in drinking water was not accurate and PFOA concentrations were underreported.
5. Forensic techniques to age date the PFOA using the isomers of PFOA were not performed. The FC-143 produced by 3M and used by DuPont at the Washington Works plant prior to 2002 included up to 30% C-8 branched-chain isomers that were not present in the APFO produced by the telomerization process, which was used by DuPont after 2002. According to Hyeong-Moo Shin, et al., PFOA entered the municipal water supplies via air transport and deposition of PFOA from the Washington Works *924plant. It is unknown whether this PFOA is from the use of FC-143 from 3M by the Washington Works facility, or C-8 from the PFOA made by DuPont and used after 2002 when the 3M PFOA was no longer available. Isomer analysis could be of forensic aid in the transport mechanism as well as making the analytical results more reliable.
6. Three decades of qualitative and quantitative analysis of PFOA for the health and safety of employees and the Washington Works plant community by one of the world's major chemical companies shows that the analytical sampling and analysis are still questionable due to accuracy, precision, representativeness, completeness, and comparability concerns. None of these analytical chemistry concerns apply to other chemicals of considerable and probable health concerns, such as dioxin, or polynuclear aromatic hydrocarbons (PAHs), or polychlorinated biphenyls (PCBs). All of these substances are semi-volatile compounds like PFOA and their sampling and analysis can be accomplished to very low concentrations accurately and precisely. There is a disconnect in the approach to accurate and precise analytical chemistry of PFOA. This disconnect has led to DuPont's underestimation and underreporting of PFOA concentrations and the reluctance to correct the analytical system.

(Smith Report at 66-67.)

The Trial Plaintiffs also offer Robert W. Johnson to opine on the financial condition of DuPont in the event the trial goes to a punitive damages phase. (Johnson Report, ECF No. 2811-5; Johnson Dep. Tr., ECF No. 2809-6.)

In its Motion, DuPont moves for exclusion of the entire testimony of both Dr. Smith and Mr. Johnson as unreliable. DuPont also contends that Dr. Smith's testimony should be excluded because it is unfairly prejudicial, confusing, misleading, and needlessly cumulative.

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In re E. I. Du Pont De Nemours & Co. C-8 Personal Injury Litig., 345 F. Supp. 3d 920 (S.D. Ohio 2015).

345 F. Supp. 3d 920 (In re E. I. Du Pont De Nemours & Co. C-8 Personal Injury Litig.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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