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W.Va. Supreme Court To Hear DuPont Appeal

Court will hear the appeal of a nearly $400 million judgment against the chemical giant over health threats at a former zinc smelting plant.

CHARLESTON, W.Va. (AP) -- At least one West Virginia Supreme Court justice wants to hear the appeal of a nearly $400 million judgment against DuPont Co. over health threats at a former zinc smelting plant.

Justice Larry Starcher told the chemical giant's lawyers at a Wednesday hearing that the size of the verdicts, awarded in separate trial phases of the case, cried out for review.

"I think that anything of this magnitude needs another look," Starcher said. "It ought to be done with somebody from both sides, and it ought to be done requesting the five highest jurists in this state to write on it."

A decision on whether the five-member court will accept the case was expected this week.

A Harrison County jury last year decided that DuPont spent decades downplaying and lying about health threats at the former zinc plant site in Spelter. Damages awarded against the world's fourth-largest chemical maker included $196 million meant to punish it for its conduct; $130 million to fund a 40-year health screening program for area residents; and $55.5 million to clean up private properties.

In favoring acceptance of DuPont's petition, Starcher also said it was a mistake that his court refused a pair of recent, multimillion-dollar cases: appeals of a $404 million verdict in a natural gas royalty dispute, and a $260 million judgment in a coal supply contract dispute.

Those refusals helped prompt Gov. Joe Manchin to file a headline-grabbing brief this summer, urging the justices to hear the DuPont case.

The two rejected appeals had also involved punitive damage awards. But Starcher also agreed with Justice Robin Davis, who said recent federal rulings don't compel the justices to hear appeals of such verdicts.

Both Manchin's filing and DuPont lawyer David Thomas on Wednesday cited U.S. Supreme Court rulings they argue mandate reviews of punitive damages. Davis disagreed with those readings, telling Thomas that the West Virginia Constitution governs the justices' procedure for accepting cases.

"None of those opinions say that we have to review and write an opinion with regard to punitive damages," Davis said.

Thomas argued that DuPont was wrongly held liable for the actions of the Spelter site's previous owner. DuPont, based in Wilmington, Del., bought the property in 2001 and had also run the plant from 1928 to 1950, but Thomas said it followed all operating standards of the time.

Thomas faulted the trial court for ignoring DuPont's work with state and federal regulators to clean up the property. He also questioned the testing called for in the health-screening plan.

"The repeated CT scans that are the subject of this medical monitoring program, without question, will increase the dose of radiation and do more harm than the number of cancers that are expected to develop from the risks presented," Thomas said.

As for other grounds for appeal, Thomas said Judge Thomas Bedell should have held a closed-door hearing before allowing testimony that DuPont has medical monitoring programs at other sites.

Wednesday's hearing did not include a response from the Spelter plaintiffs. Earlier this month, their lawyers asked the Supreme Court to include 300 more people in the class action for the property cleanup portion of the verdicts.

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