In re E. I. du Pont de Nemours & Co. C-8 Pers. Injury Litig.

IN RE: E. I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION,

This document relates to: ALL CASES

Civil Action 2:13-md-2433

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

November 25, 2019

JUDGE EDMUND A. SARGUS, JR.

Chief Magistrate Judge Elizabeth P. Deavers

DISPOSITIVE MOTIONS ORDER NO. 34

Plaintiffs' Motion for Application of Issue Preclusion/Collateral Estoppel

This matter is before the Court on Plaintiffs' Renewed¹ Motion for Partial Summary Judgment on the Application of the Doctrine of Issue Preclusion/Collateral Estoppel ("Plaintiffs' Renewed Motion") (In re: E.I. du Pont de Nemours and Company C-8 Personal Injury Litigation, 2:13-md-2433, MDL ECF No. 5274), Defendant DuPont de Nemours and Company's ("Defendant" or "DuPont") Memorandum in Opposition to Plaintiffs' Renewed Motion (MDL ECF No. 5278), Plaintiffs' Reply Brief in Support of their Renewed Motion (MDL ECF No. 5280), Defendant's Motion to File Sur-Reply Instanter (MDL ECF No. 5281), Defendant's Sur-Reply (MDL ECF No. 5281-1), Plaintiffs' Opposition to Defendant's Motion to File Sur-Reply Instanter (MDL ECF No. 5282), and Defendant's Reply Brief in Support of its Motion to FileSur-Reply Instanter (MDL ECF No. 5283). For the reasons set forth below, the Court GRANTS both motions. (MDL ECF Nos. 5274, 5281.)

I.

The facts underlying the cases in this multidistrict litigation ("MDL") were first brought before the judiciary over 20 years ago in a West Virginia state court case. The cases involve individual plaintiffs who are all part of a class certified 18 years ago that consisted of approximately 80,000 residents of Ohio and West Virginia who drank water contaminated by releases from DuPont's Washington Works facility. All the cases purport to be subject to a settlement agreement executed 15 years ago ("Leach Settlement Agreement") between the class and DuPont. The record in this Court spans six and one-half years, requiring two years of supplementary court staffing, docket entries exceeding 5,200 filings, including more than 450 decisions from the Court, four month-long jury trials with three trials going to verdicts all in favor of the plaintiffs—with nearly $9 million in liability damage awards on negligence claims and $11 million in punitive damage awards. DuPont appealed the verdicts in the first trial to the United States Court of Appeals for the Sixth Circuit, the appeal received full briefing, assignment of a judicial panel, and oral argument before the panel. DuPont withdrew the appeal before decision. On the same day the appeal was withdrawn, the fourth trial was ended in its third week without a verdict from the jury. DuPont filed notice with the Security and Exchange Commission ("SEC") of a $670.7 million global settlement of the 3500-plus then-pending cases, all of which were dismissed. Since that time, 50-plus post-settlement cases have been filed in this Court, with over 70 motions currently pending, and the first trial scheduled to commence in less than two months, on January 21, 2020.

In their Renewed Motion, Plaintiffs move for the application of collateral estoppel/issue preclusion on duty, breach, general causation, interpretation of the Leach Settlement Agreement, and the inapplicability of the Ohio Tort Reform Act to the cases currently pending before the Court in this MDL. Generally, the doctrine of issue preclusion bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to a prior judgment. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979); Goodson v. McDonough Power Equip., Inc., 2 Ohio St. 3d 193, 195 (1983). "By 'preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate,'" collateral estoppel protects against "the expense and vexation attending multiple lawsuits, conserv[es] judicial resources, and foste[rs] reliance on judicial action by minimizing the possibility of inconsistent decisions." Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (alterations in original) (quoting Montana v. United States, 440 U.S. 147, 153-54 (1979)).

The Court herein provides an overview of only the aspects of this case necessary to reach the issues presently before it.

A. West Virginia Lawsuits

In 1998, in a case styled Tennant v. E.I. du Pont de Nemours & Co., Inc., No. 6:99-0488 (S.D. W.Va.), discovery brought to light the fact that the drinking water supplies around DuPont's Washington Works facility in Parkersburg, West Virginia were contaminated with a synthetic perfluorinated carboxylic acid and fluorosurfactant also known as perfluorooctoanoic acid or ammonium perfluorooctanoate ("PFOA" or "C-8"). (Pls' Mot. for Partial Summ. J., Bilott Aff. Ex. B, MDL ECF No. 820-4.) C-8 is in "a family of human-made chemicals that do not occur naturally in the environment." (Public Health Statement at 3, Dept. of Health and Human Serv., Public Health Service Agency for Toxic Substances and Disease Registry,https://www.atsdr.cdc.gov/toxprofiles/tp200-c1-b.pdf.) C-8 "stays in the body for many years. It takes approximately 4 years for the level in the body to go down by half, even if no more is taken in." Id. Testimony before mis Court, from experts presented by Plaintiffs and DuPont, indicates that the stability of C-8 prevents the breakdown not only in the human body, but also in the environment, resulting in half-life residuals of the chemical in a human body for decades of years. (See, e.g., Bartlett Tr. Transcript at 22, Carla Marie Bartlett v. E. I. du Pont de Nemours and Company, Case No. 2:13-cv-170, Bartlett ECF No. 127.)

Eighteen years ago, a group of individuals who had ingested the contaminated water in Ohio and West Virginia filed a class action in West Virginia state court: Leach v. E. I. Du Pont de Nemours & Co., No. 01-C-608 (W. Va. Cir. Ct. Wood County Aug. 31, 2001) ("Leach Case"). The Leach Case plaintiffs alleged that DuPont was liable under a variety of West Virginia common law tort theories for equitable, injunctive, and declaratory relief, along with compensatory and punitive damages, as a result of contaminating with C-8 the drinking water supplies of the communities surrounding Washington Works. DuPont did not, and still does not, dispute that from its Washington Works facility DuPont discharged C-8 into the water, air, and unlined landfills around the facility or that the landfills seeped C-8 into the soil, the Ohio river carried the C-8 down-river, and the air currents carried the ash that fell to the ground, all of which contributed to the contamination of the drinking water reservoirs.

After three years of litigating the Leach Case, including widespread discovery, extensive motion practice, and three appeals taken to the West Virginia Supreme Court of Appeals, the parties executed the Leach Settlement Agreement to effectuate a class-wide settlement of the Leach Case. (Leach Settlement Agreement ("S.A."), MDL ECF No. 820-8.)

In the Leach Settlement Agreement, the parties fashioned a unique procedure to determine whether the approximately 80,000 members of the Leach Class would be permitted to file actions against DuPont based on any of the human diseases they believed had been caused by their exposure to C-8 discharged from DuPont's Washington Works plant. The procedure required DuPont and the Leach Class to jointly select three completely independent, mutually-agreeable, and appropriately credentialed epidemiologists ("Science Panel") to study human disease among the Leach Class. The Leach Class consisted of those individuals who for at least one year, had "consumed drinking water containing .05 ppb or greater of C-8 attributable to releases from Washington Works." (S.A. § 2.1.1.)

Until the Science Panel reached its conclusions, the Leach Class members were not permitted to file any personal injury claims relating to C-8 exposure. For over seven years, the Science Panel conducted a massive epidemiological study costing over $24 million to determine whether any of the diseases suffered by members of the Leach Class were linked to their ingestion of C-8.

In 2012, the Science Panel delivered Probable Link Findings for six human diseases ("Linked Diseases"): kidney cancer, testicular cancer, thyroid disease, ulcerative colitis, diagnosed high cholesterol (hypercholesterolemia), and pregnancy-induced hypertension and preeclampsia. The Probable Link Finding means that for each Leach Class member it is more likely than not that there is a link between his or her exposure to C-8 (i.e., drinking water containing at least .05 ppb of C-8 for at least one year) and his or her Linked Disease.

In addition to the seven-year reprieve from defending any litigation related to its discharge of C-8 into the drinking water of approximately 80,000 people, DuPont received the benefit of No Probable Link Findings for 50 diseases also studied by the Science Panel. Once aNo Probable Link Finding issued, DuPont was "forever discharge[d] from any and all claims, losses, damages, attorneys' fees, costs, and expenses, whether asserted or not, accrued or not, known or unknown, for personal injury and wrongful death . . . ." (S.A. § 3.3) (emphasis added). In other words, under the terms of the Leach Settlement Agreement all of the Leach Class members who received a No Probable Link Finding were prohibited from filing a personal injury action against DuPont, regardless of whether any other study or expert disagreed with the Science Panel or later scientific studies were at odds with the Science Panel's No Probable Link Findings.

Under the Leach Settlement Agreement, the Leach Class and DuPont agreed that the members of the Leach Class who suffered from a Linked Disease were entitled to have the Probable Link Finding applied to them. That means that it is more likely than not that there is a link between the class members' exposure to C-8 and their Linked Disease, (i.e., the Probable Link Finding), and...