LOOKING FORWARD TO A TRIAL
Flower grower David Matsuura, right, is one of six Hawaii plant growers, who settled product liability cases against Dupont in 1994 before learning that the company withheld evidence of widespread contamination of Benlate, and have since brought racketeering and fraud charges against DuPont. On Friday, he showed off one of his few surviving Oncidium orchids, as his 15-year-old daughter, Grace, looked on.
DuPont knee deep in lawsuits
The chemical company has scores of liability cases pending, including one involving Hawaii
DOVER, Del. » While the DuPont Co. faces lawsuits in several states regarding the potential health risks of a key ingredient in producing Teflon, the company has yet to rid itself of the legal legacy of another controversial chemical.
The Wilmington-based company last year resolved 30 lawsuits involving Benlate, a fungicide that has been the source of hundreds of lawsuits alleging plant damage and birth defects, according to a recent securities filing.
DuPont's experience with Benlate cases thus far could lead it to take a hard line against quick settlements of pending litigation involving Benlate and those involving perfluorooctanoic acid, or PFOA, a processing aid used in the manufacturing of fluoropolymers, which have a variety of product applications, including Teflon-coated cookware.
Despite last year's case resolutions, DuPont has scores of Benlate cases pending, including a crop damage trial that began last week in Miami. In Delaware, attorneys are submitting briefs to the state Supreme Court in one of three cases alleging that Benlate causes birth defects.
"This is the third time we're up before the Supreme Court," said Wilmington attorney Robert Jacobs, who is helping represent the families of eight children from the United Kingdom and New Zealand who were born without eyes or with abnormally small eyes, defects also noted in the offspring of laboratory rats exposed to Benlate. "You cannot say we're not tenacious."
Legal maneuvering also continues in Hawaii, where plant growers who settled product liability cases against DuPont in 1994 before learning that the company withheld evidence of widespread contamination of Benlate have brought racketeering and fraud charges against DuPont.
"It's been an up-and-down judicial roller coaster, but we still have our day in court," said David Matsuura, 43, a former orchid grower who said the Hawaii case could go to trial in November. "This time, we hope we actually get to go to trial."
Drawing on its experience in the Benlate cases, DuPont has adopted a more deliberate approach to multiple lawsuits. The company now uses a holistic strategy that attacks litigation by broadening its legal approach to include factors such as the science involved, the cost to the company, and internal and external communications. The new method is expected to influence how DuPont confronts the rest of the Benlate cases and its Teflon litigation.
"When we first experienced the Benlate claims and litigation, we had never dealt with a mass tort litigation before," said DuPont vice president and assistant general counsel Tom Sager.
As a result, Sager said, DuPont in the early stages of the Benlate litigation tended to give growers the benefit of the doubt and was perhaps too willing to settle cases too early, encouraging more lawsuits.
"It wasn't an open checkbook, but there was not the kind of discipline and oversight we should have had in place," Sager said.
DuPont has since developed a 10-step planning process for complex litigation that encompasses everything from making sure the attorneys representing the company are well-versed in product liability to centralizing decision-making and keeping an eye on costs.
"This is clearly application of lessons learned," said DuPont spokesman Clif Webb.
DuPont, which last year won a case filed by a Costa Rican fruit grower who had sought more than $170 million in damages, maintains Benlate is safe. It says it decided to halt production in 2001 for practical reasons, chiefly the cost of litigation.
Now, the company is facing potentially costly litigation involving PFOA. Federal lawsuits filed in more than a dozen states allege that DuPont failed to disclose to consumers that Teflon-coated cookware can give off harmful gases.
DuPont officials maintain that PFOA does not pose a risk to human health, and that Teflon cookware is safe.
"If you look at the company's stance around Benlate, for years they asserted that this doesn't cause any harm ... but yet they've paid $1.9 billion dollars in litigation costs," said Sanford Lewis, an attorney representing DuPont Shareholders for Fair Value, an investors coalition critical of the handling of concerns about PFOA.
"When you look at the PFOA issue, you see them making the same kinds of assertions," Lewis said. "If anything, it looks an awful lot like part of that history repeating."
Another issue shared in litigation surrounding the two products is concern over how forthcoming DuPont is in sharing information.
DuPont agreed in December to pay $10.25 million in fines and $6.25 million for environmental projects to settle allegations by the Environmental Protection Agency that the company kept information about PFOA from government regulators.
During the course of the Benlate litigation, at least three judges took the company to task for withholding evidence from plaintiffs. One judge called the practice "willful, deliberate, conscious, purposeful, deceitful, and in bad faith," and DuPont was ordered to pay millions in court sanctions.
DuPont officials maintain the information the company allegedly withheld in the Benlate cases was available to plaintiffs. Webb also noted that while DuPont has about 4,200 lawsuits pending against it, there have been fewer than 10 instances in the past 13 years in which it has been subject to court sanctions or claims about not producing documents.