A cover story in the New York Times Magazine, “The Lawyer Who Became DuPont’s Worst Nightmare: Poisoned Ground,” last Sunday reported on the stranger-than-fiction tale of the outrage against DuPont of a corporate defense attorney. DuPont allegedly mishandled the poisonous substance PFOA in West Virginia, which caused the chemical contamination by PFOA of drinking water and the ground itself.  In the damning and affirming piece, Nathaniel Rich traces the path of Rob Bilott from corporate defense attorney to activist to creator of a plaintiffs’ class action lawsuit against DuPont for alleged deliberate chemical pollution. The saga began for Bilott when Wilbur Tennant, a cattle farmer from Parkersburg, West Virginia, called Bilott a few months before he made partner at a white-shoe Cincinnati law firm.  Known familiarly as Taft, the firm draws its origins from President Taft and his family. Tennant claimed that his cattle were becoming ill and dying as a result of the deliberate dumping of a poisonous substance by DuPont.

Tennant had to find an out-of-state lawyer, he said, because DuPont essentially “owned” the town of Parkersburg and prevented its lawyers, politicians, journalists, and veterinarians from supporting the claim that DuPont had polluted the town’s drinking water and the ground on which Tennant’s cattle grazed. Although Bilott was a defendant’s lawyer who had worked with DuPont in the past, he agreed to meet with Tennant because he had spent a summer on their farm long ago. Besides, the Tennant family knew his grandmother.

A week later, Tennant appeared in the firm’s downtown Cincinnati office in a flannel shirt. He showed Bilott a series of Camcorder videos showing “soapy froth” in a creek running through DuPont’s landfill property and into Tennant’s farm. Tennant stated that he’d removed two dead deer and two dead cattle from the ripple, with blood running out of their noses and mouths. He alleged a deliberate cover-up by DuPont. Most defendants’ attorneys, especially those seeking to make partner, would have politely declined to become involved, family ties or not. But after viewing hours of photographs of malformed cows, cows with lesions, white slime slobber dribbling out of their mouths, and worse, the New York Times reports, Bilott concluded, “There’s something really bad going on here.”

Bilott took the case and eventually succeeded in securing a settlement for the Tennant family. Luckily for Parkersburg, West Virginia residents, and for the public, he didn’t stop with Tennant’s case. Bilott created a 972 page “public brief” outlining PFOA’s threat to animal and human health and to the environment. He submitted the brief to all possible relevant public authorities, including the EPA and the US Attorney General, and later, sent his whole case file to the EPA. Eventually, the EPA accused DuPont of intentionally concealing the toxicity and presence in the environment of PFOA in West Virginia. DuPont paid $16.5 million but did not admit any fault or responsibility for what happened. DuPont also agreed to pay $70 million to settle the class action suit.

Bilott encouraged the class to use its payment to test their blood, and pursuant to the settlement DuPont had to pay for the testing. Meanwhile, Wilbur Tennant contracted cancer and then died of a heart attack, and two years later, his wife died of cancer as well. Currently, over 3,000 PFOA C8 cases are pending. The first found liability against DuPont. DuPont is appealing. The second will be tried in March.

Ten Damning Facts About DuPont’s Alleged Deliberate Dumping of PFOA (Gleaned From New York Times Sunday Magazine Article January 10, 2016)

1. 1. In the 1950’s, DuPont realized that PFOA (referred to as C8 by DuPont), a substance used to prevent clumping during coating of products like Teflon, was dangerous, and instructed its employees not to flush PFOA C8 into surface water or sewers.
   2. Although the company knew that PFOA was dangerous, DuPont pumped several hundred thousand pounds of PFOA C8 powder through pipes in its Parkersburg West Virginia plant and into the nearby Ohio River.
   3. Although the company knew that PFOA was dangerous, DuPont dumped over 140,000 pounds of sludge laced with PFOA C8 into ponds in Parkersburg, West Virginia, enabling the poisonous chemical to enter the ground directly, and to enter the drinking water of more than 100,000 people in Parkersburg, as well as nearby Vienna, Little Hocking, and Lubeck, West Virginia.
   4. DuPont and 3M, the inventor of PFOA C8, secretly studied the effects of PFOA C8 for almost fifty years, finding but not disclosing that:
      • PFOA C8 enlarges the liver in rats, rabbits, and dogs

• By the 1970’s, DuPont knew but did not warn its employees that the workers in its West Virginia factory had high concentrations of PFOA C8 in their blood
• By the early 1980’s, DuPont knew that eating or drinking PFOA C8 led to birth defects in rats
• DuPont learned through testing that the children of pregnant workers in its Teflon factory had an unusually high proportion of eye defects
• As early as 1984, DuPont knew that PFOA C8 had made its way to the West Virginia water supply
• In 1984, DuPont concluded that a safe limit for PFOA C8 in drinking water was one part per billion, but after internal debate did not disclose this fact or the fact that the drinking water in a West Virginia local district contained 3 parts per billion, an unsafe amount
• In the 1990’s, DuPont knew that PFOA C8 caused testicular, pancreatic, and liver cancer in lab animals, and might also cause DNA damage and prostate cancer.

1. DuPont created a less damaging alternative to PFOA C8 but made a business decision not to use it, as switching chemicals would risk a billion dollars a year in profit
2. Instead, Dupont began dumping PFOA C8 toxic sludge into a landfill called “Dry Run Landfill.”
3. Dry Run Landfill abutted Wilbur Tennant’s Parkersburg property and had once been part of his farm. DuPont tested the water in Dry Run Creek and learned that it had extremely high levels of PFOA C8.
4. In covering up its deliberate dumping of a substance that caused disease and death in animals and people, DuPont flouted its responsibility to the public by making specious arguments, for example, claiming that it had voluntarily sent health-related information about PFOA C8 to the EPA when in fact DuPont submitted two studies questioning the assertion that PFOA C8 exposure was linked to health problems in humans.
5. When Wilbur Tennant challenged DuPont, DuPont produced a report which blamed “poor animal husbandry” for the illness and death of Tennant’s cows although DuPont had known for decades that PFOA C8 caused the harm experienced by Tennant’s cattle.
6. Several former lawyers used by DuPont joined the state Department of Environmental Protection and later endorsed standards for PFOA C8 thresholds in drinking water urged by DuPont.

Lessons Learned

In addition to getting a somewhat unprecedented glimpse at how large companies make business and profit decisions which harm the public and the environment, the superb New York Times article made a pronouncement which LawCash believes is worth repeating:the public has a misperception that if a chemical is dangerous, it is regulated by the EPA. This is not so. In fact, according to the article, in the past forty years, the EPA has only declared five chemicals dangerous.

An additional lesson learned isn’t really a new one. Until and unless white collar corporate defendants face criminal penalties for their actions, large businesses will continue to make financial decisions which help the bottom line and hurt the public. Trading a $70 million dollar slap on the wrist for billions of dollars in profit seems to be a no-brainer for corporate executives. Only the threat of personal jeopardy will change the balance.

Finally, defense attorneys can switch sides when they see egregious wrongs. And they’re pretty clever and creative.