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Federal court affirms dismissal of C8 claims

CHARLESTON, W.Va. -- A federal appeals court has upheld two decisions that threw out most of a lawsuit field against chemical giant DuPont Co. by Parkersburg residents over the pollution of their city's water with the toxic chemical C8.

A three-judge panel of the 4th U.S. Circuit Court of Appeals backed the rulings made in October 2008 and September 2009 by Chief U.S. District Judge Joseph R. Goodwin.

Goodwin had declined to allow the case to proceed as a class action and, in a second decision, dismissed claims of negligence, nuisance, trespassing and battery.

In a 17-page opinion, Judge Barbara Milano Keenan concluded that the presence of C8 in plaintiffs' blood -- and the potential risk to human health from that condition -- did not satisfy the "injury" requirement under West Virginia law.

"In such situations, a plaintiff also must produce evidence of a detrimental effect to the plaintiffs' health that actually has occurred or is reasonably certain due to a present harm," Keenan wrote.

Judges Paul V. Niemeyer and Allyson K. Duncan joined Keenan in the decision.

The decision also said that a West Virginia Supreme Court decision allowing cases for "medical monitoring" did not lower the standard of proof required in such toxic chemical lawsuits.

"The 'injury' required to prove a medical monitoring claim is a 'significantly increased risk of contracting a particular disease relative to what would be the case in the absence of exposure,'" Keenan wrote. "A plaintiff seeking medical monitoring as an element of damages for a traditional common law tort must still prove the required elements of that tort to obtain medical monitoring relief."

C8 is another name for ammonium perfluorooctanoate, or PFOA. DuPont used the chemical for decades at its Washington Works plant south of Parkersburg. C8 is a processing agent used to make Teflon and other nonstick products, oil-resistant paper packaging and stain-resistant textiles.

Evidence is mounting about C8's harmful effects, but federal regulatory agencies have yet to set a safe standard for emissions or human exposure.

In September 2004, DuPont agreed to a $107.6 million settlement with residents of communities around Parkersburg. The money is funding two major studies of C8's impacts, and DuPont also installed water treatment systems for those communities.

At the time of that settlement, C8 had not been found in the Parkersburg city water. Later, C8 was detected there and a follow-up case was filed. The previous suit was in state court, but the follow-up case was in federal court because of a 2005 law that mandated proposed class actions involving significant amounts of money or parties from different states be in federal courts.

In New Jersey, a federal judge has allowed two similar cases against DuPont to proceed, and the company agreed to an $8.3 million settlement that will fund water filters for residents near the DuPont Chambers Workers plant.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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