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W.Va. Gov. Seeks Review Of DuPont Zinc Plant Case

Gov. Joe Manchin has urged the West Virginia Supreme Court to clarify whether DuPont has a right to have an appeal heard on $196.2 million in punitive damages.

CHARLESTON, W.Va. (AP) -- Gov. Joe Manchin has urged the West Virginia Supreme Court to clarify whether DuPont has a right to have an appeal heard on $196.2 million in punitive damages, about half of a jury settlement awarded last year in a civil suit claiming health threats at a former zinc smelting plant.

The jury in Harrison County Circuit Court had awarded damages totaling nearly $400 million to residents living near the former plant in Spelter. Plaintiffs alleged that the chemical giant spent decades downplaying and lying about health threats from arsenic, cadmium and lead that contaminated air, soil and water.

The jury said it awarded $196.2 million in punitive damages to deter future misconduct, saying DuPont had engaged in wanton, willful and reckless conduct in its operation of the smelter. Non-punitive damages included $130 million to fund a 40-year health screening plan to monitor plaintiffs for any ailments related to exposure to chemicals.

Last week, Dupont filed an appeal of the entire verdict, arguing it has been unfairly punished for doing the right thing at the site and for the community. The state Supreme Court, which is in summer recess, has not yet indicated whether the appeal will be heard.

In a "friend of the court" brief filed last week, Manchin urged the justices to clarify what sort of appellate review is afforded the company under its constitutional right to due process. His lawyers cited a 2003 U.S. Supreme Court decision to argue that the 14th Amendment guarantees appeals of punitive damages.

"Ensuring that West Virginia courts provide the appropriate level of appellate review to (DuPont), as well as all other parties seeking review of punitive damages awards, is an issue of vital public importance," the brief argued.

DuPont spokesman Anthony Farina said Wednesday the company was pleased with Manchin's intercession. He urged the court "to conduct a detailed and exacting review of the award."

The plaintiffs, however, contend DuPont can make any further legal arguments in a petition, without need of a court appearance.

Brian Barr, a plaintiff's attorney, said he hadn't seen Manchin's brief. But he said Circuit Judge Thomas Bedell, who presided over the jury trial, already reviewed the punitive damages for propriety during and after trial.

Had Bedell found the amount excessive or unfounded, "The court could have taken the punitive damages away," Barr said.

"The whole idea that DuPont has not had a review at all is senseless," Barr added, accusing DuPont of stalling. "All DuPont is trying to do right now is protect its money."

Separately, West Virginia's sole appellate court recently refused to consider appeals in two unrelated cases involving a combined $664 million in damages.

Only West Virginia and Virginia give their appeals courts complete discretion on whether to hear most civil cases, the governor's brief argued, adding the rest grant the kind of automatic appeals that West Virginia lacks.

Manchin's filing comes a month after the governor said companies doing business in West Virginia deserve to their fair day in court. The comments came after the court unanimously refused to to hear a $404 million verdict against NiSource and Chesapeake Energy.

Chesapeake has since blamed the rejection of its case, a class-action lawsuit filed by thousands of gas royalty holders, for its scuttling of plans to build a $35 million regional headquarters in Charleston.

Earlier the court refused to consider Massey Energy's appeal of a $260 million verdict.

Associated Press writer Vicki Smith in Morgantown contributed to this report.

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