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Four months before E.I. du Pont de Nemours & Co. faces a high-stakes water-contamination trial, the West Virginia Supreme Court of Appeals unsealed documents this month in which a company lawyer�even before the class action was filed�suggested it would be hard-pressed to fight claims that it contaminated the Ohio River with chemicals used in Teflon products. “We are going to spend millions to defend these lawsuits and have the additional threat of punitive damages hanging over our head,” DuPont lawyer John Bowman predicted in an e-mail to colleagues now posted on the Web at www.thememoryhole.com. “[A]cting responsibly can undercut and reduce the potential for punitives. Bernie and I have been unsuccessful in even engaging the clients in any meaningful discussion of the subject.” The reference was apparently to DuPont lawyer Bernard Reilly, who was copied on the e-mail. Bowman wrote that he had consulted lawyers from companies that defended water-contamination claims involving the gasoline additive MTBE, and they advised remediation rather than litigation. He was particularly concerned because a chemical used to make Teflon, ammonium perfluorooctanoate�commonly called C-8�and the related perfluorooctanoic acid (PFOA) degrade very slowly. “Our story is not a good one,” Bowman concluded, “we continued to increase our emissions into the river in spite of internal committments [sic] to reduce or eliminate the release of this chemical into the community and the environment because of our concern about the biopersistence of this chemical.” Teflon isn’t a chemical; it’s a trademark. The products lumped together under the name are best known for their nonstick quality in cookware, but a DuPont Web site illustrates that they also include products that coat eyeglasses, lubricate cars and bicycles, and protect walls, clothing and carpets from stains. Many are made using C-8 and related chemicals. A DuPont executive testified in a deposition that products made using C-8 accounted for $200 million in after-tax profits in 2000, according to an article in the News Journal of Wilmington, Del. Studying the issue The U.S. Environmental Protection Agency (EPA) has found that PFOA can cause cancer in animals and has identified it as a potential health risk in humans, but it has not recommended action. Research suggests that more than 90% of the population has at least a low level of PFOA in their blood. It isn’t clear why, nor is it clear that this is dangerous, the EPA has said. It is studying the issue. The West Virginia lawsuit was brought on behalf of 13 plaintiffs who represent a class that could number 50,000. It claimed that DuPont and the Lubeck Public Service District, the utility that served the plant, were negligent and breached their duty by failing to disclose the pollution and the associated risks. They have known about these, the complaint alleged, since the 1980s. Plaintiffs demanded compensatory and punitive damages and medical monitoring. Leach v. DuPont, No. 01-C-608 (Wood Co., W.Va., Cir. Ct.). The plaintiffs’ lead lawyer is Robert Bilott of Cincinnati’s Taft, Stettinius & Hollister. DuPont’s outside counsel is Laurence Janssen, a partner in the Los Angeles office of Washington’s Steptoe & Johnson. (The utility, represented by Parkersburg, W.Va., solo Richard Hayhurst, settled in April 2003 for $160,000 paid by its insurer.) The lawyers declined to comment beyond what is in the public record since the judge said in January he didn’t want the case tried in the media. DuPont also declined to answer questions about the case and other matters. But in public statements, the company has said that neither C-8 nor related chemicals are harmful. In a rebuttal to a segment aired last November on the ABC television show 20/20, the company said it was cooperating with the EPA inquiry and favored EPA regulation of C-8 and the other chemicals to assure consumers that its products “are safe for human health and the environment.” DuPont also noted that the U.S. Consumer Product Safety Commission denied a request that it consider warning labels for Teflon cookware. The proposal came from the Environmental Working Group, a nonprofit group in Washington that has been a critic of the company. In the only previous lawsuit involving C-8, a West Virginia rancher claimed pollution killed nearly 300 cows. Bilott also represented that plaintiff, who reached a confidential settlement in 2001. Tennant v. DuPont, No. 6:99-0488 (S.D. W.Va.).

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