Gov. Joe Manchin wants the West Virginia Supreme Court to clarify whether DuPont has the right to be heard as it appeals $196.2 million in punitive damages, about half the amount a jury awarded in a case involving health threats from a former zinc smelting plant.
The lead attorney for the plaintiffs on Wednesday called the governor's action unprecedented.
"I've never seen anything like this," said Florida lawyer Michael Papantonio. "This just further delineates how badly the deck is stacked in West Virginia against people trying to recover when they're taking on DuPont. It's stacked against people who have been wronged by corporate America."
The jury in Harrison County Circuit Court last fall awarded damages totaling nearly $400 million to residents living near the former plant in Spelter. The plaintiffs argued the chemical giant spent decades downplaying and lying about health threats from arsenic, cadmium and lead that contaminated air, soil and water.
Punitive damages are designed to deter future misconduct, and the jury ruled that 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 appealed 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 to be afforded DuPont 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.
The brief essentially questions whether consideration of a written appeal alone is adequate.
"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 the company was pleased with Manchin's intercession and urged the court "to conduct a detailed and exacting review of the award."
The plaintiffs, however, contend DuPont can make its arguments in a petition, without a court appearance.
Attorney Brian Barr said he hadn't seen Manchin's brief. But he said trial Judge Thomas Bedell 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."
Only West Virginia and Virginia give their appeals courts complete discretion on whether to hear most civil cases, the governor's brief argued. 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 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.
The state's sole appellate court also recently refused to consider Massey Energy's appeal of a $260 million verdict.
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Associated Press writer Vicki Smith in Morgantown contributed to this report.
(This version CORRECTS in lede that award was not a settlement; UPDATES with comment from lead plaintiffs' lawyer; EDITS.)
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