In re E.I. Du Pont De Nemours & Co. C-8 Personal Injury Litig.

• Decision Date: 26 May 2016
• Docket Number: Civil Action 2:13-md-2433
• Citation: 348 F.Supp.3d 698
• Parties: IN RE: E.I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION, This Document Relates to: ALL CASES.
• Court: U.S. District Court — Southern District of Ohio

348 F.Supp.3d 698

IN RE: E.I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION,

This Document Relates to: ALL CASES.

Civil Action 2:13-md-2433

United States District Court, S.D. Ohio, Eastern Division.

Signed May 26, 2016

EVIDENTIARY MOTIONS ORDER NO. 6

Defendant's Motion to Exclude Opinion of Carrie Redlich Related Corporate Conduct

EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant's Motion to Exclude the Opinions and Testimony of Carrie Redlich Based on Extra-Legal Standards of Care, Her Improper Legal Conclusions, and DuPont's State of Mind ("Motion to Exclude Redlich Opinions") (ECF No, 4315). Plaintiff's Memorandum in Opposition to Defendant's Motion (ECF No. 4333), and Defendant's Reply in Support of its Motion (ECF No. 4346). For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Defendant's Motion in accordance with this Opinion and Order.

I.

Plaintiff David Freeman's case is scheduled for trial on May 31, 2016, and is the second bellwether case to be tried in this multidistrict litigation ("MDL"). Carla Marie Bartlett was the first bellwether plaintiff, and her case was tried in September 2015. It is not disputed that Mr. Freeman is a member of a class ("Leach Class") of approximately 3,500 individuals who are permitted under a contractual agreement ("Leach Settlement Agreement") to file claims against Defendant E. I. du Pont de Nemours and Company ("DuPont") based on six human diseases ("Linked Diseases") that they believe were caused by their exposure to ammonium perfluorooclanoate ("C-8" or "PFOA") discharged from DuPont's Washington Works plant. (Leach Settlement Agreement ("S.A."); ECF No. 820-8.) C-8 is an organic fluorinated compound that DuPont utilized as a manufacturing aid in the production of Teflon™.

It is undisputed that since it first began using C-8 in the 1950s, DuPont has released C-8 directly into surface waters and unlined landfills. DuPont characterizes the amount released as "relatively low" and maintains that it had no reason to believe that C-8 was harmful to humans; mat it demonstrated sound environmental stewardship practices with respect to C-8. (DuPont's Reply in Support of Post Trial Motion at 6, Bartlett ECF No. 159.) "DuPont [posits that it] has always acted responsibly based on the health and environmental information that was available to the industry and regulators about PFOA at the time of its usage." (DuPont's Position Statement on PFOA, http://www.dupont.com/corporate-functions/our-company/insights/article/position-statements/articles/pfoa.html?src=google_search_OctDec2015.)

Mr. Freeman disagrees with DuPont's characterization of the amount of C-8 it released as "relatively low," citing to evidence that DuPont released the C-8 directly into surface waters and unlined landfills since the 1950s, knowing (from the scientific and medical information available) that C-8 is biopersistent and bioaccumulative such that its slow degradation in the human body and in the environment cause a small amount of the chemical to accumulate to a large amount. Mr. Freeman's position is that because DuPont knew or should have known that C-8 was harmful, it should have stopped using C-8 as a processing aid or disposed of it through incineration or in specially lined chemical landfills.

In 2000. Mr. Freeman was diagnosed with testicular cancer

, which is a Linked Disease. (http://www.c8sciencepanel.org/study.html ) ("[T]he Probable Link reports [are] presented in detail in scientific articles (follow link [on the C-8 Science Panel website to the] Study Publications."). Mr. Freeman's oncologic surgeon performed a "right radical orchiectomy" ("surgical extraction of his right testis and teratoma") and Mr. Freeman "underwent a ten-year follow-up protocol which involved frequent observation via x-rays, CAT scans, and tumor markers." (Expert Report of Robert Bahnson, M.D., F.A.C.S. at 3, ECF No. 4311-1.)

Because Mr. Freeman is a member of the Leach Class and he suffered from a Linked Disease, the Leach Settlement Agreement permits him to pursue the claims "for personal injury and wrongful death, including but not limited to any claims for injunctive relief and special, general and punitive and any other damages whatsoever associated with such claims, that ... relate to exposure to C-8 of Class Members." Id. In the Leach Settlement Agreement, DuPont agreed not to contest that "it is probable that exposure to C-8 is capable of causing a" Linked Disease in the defined group of individuals that constitutes the Leach Class. (S.A. § 1.25.) Thus, DuPont concedes that C-8 is capable of causing Mr. Freeman's testicular cancer

. Id. at § 3.3. It is Mr. Freeman's burden to show that C-8 did in fact cause his testicular cancer. Id.

Mr. Freeman filed claims against DuPont for negligence and for punitive damages. To prove his negligence claim, Mr. Freeman must show that (1) DuPont owed him a duty of care; (2) DuPont breached its duty of care to him; and (3) he suffered an injury as a proximate result of DuPont's breach of the duty of care. Menifee v. Ohio Welding Prods., Inc. , 15 Ohio St.3d 75, 472 N.E.2d 707 (1984). To prove the existence of a duty, Mr. Freeman must show that a reasonably prudent person would have foreseen that injury was likely to result to someone in Mr. Freeman's position from DuPont's conduct. Id. at 77, 472 N.E.2d 707. Mr. Freeman alleges that any reasonably prudent person would have foreseen that injury would likely result from the release of C-8 in the amount and for the duration of time that DuPont released the chemical directly into surface waters and unlined landfills.

In its defense, DuPont asserts, inter alia , that it owed no duty to Mr. Freeman. DuPont maintains that it "neither knew, nor should have known, that any of the substances to which [the Leach Class was] exposed were hazardous or constituted a reasonable or foreseeable risk of physical harm by virtue of the prevailing state of the medical, scientific and/or industrial knowledge available to DuPont at all times relevant to the claims or causes of action asserted by [the Leach Class]." (DuPont's First Amended Answer to Freeman Compl. at 4; ECF No. 124-1.)

The parties hotly dispute what health and environmental information that was available to the industry and regulators about PFOA, what the toxicological and epidemiological studies on C-8 showed, and whether DuPont demonstrated sound environmental stewardship practices with regard to C-8, or whether DuPont instead purposefully utilized scientific testing methods that would provide inaccurate results so that it could continue using C-8 even though it was known to be harmful. DuPont and Mr. Freeman have retained experts to opine on whether DuPont conformed to the industry standards based upon the state of the medical, scientific, and/or industrial knowledge that was available to DuPont at all times relevant to the claims or causes of action asserted by the Leach Class. The Court refers to these witnesses as "corporate conduct" experts.

A. DuPont's Corporate Conduct Experts

For context, the Court reviews DuPont's corporate conduct experts' opinions and testimony relevant to the issues currently before the Court.

Shane A. Snyder, Ph.D.,¹ provides:

1. "From before the 1980s and forward, DuPont has been proactive in continuously pursuing increasingly robust, sensitive, accurate, precise, and reproducible analytical methods for measuring PFOA in media, including water."

2. DuPont's actions in sampling community drinking water for C-8 in 1984 were "logical and sensible, and demonstrate[ ] their continued attempts to obtain better sensitivity and reliability."

3. DuPont C-8 water sampling data "show the continued desire from DuPont for the most accurate, reliable, and sensitive analytical methods possible for identifying and quantifying PFOA in water."

4. "DuPont's decision to work with CH2M Hill was logical and demonstrates good stewardship in addressing concerns regarding PFOA in the environment."

5. "DuPont was diligent in looking for and developing the best methods available to analyze for low levels of PFOA in various media. The methods that DuPont used over the years were appropriate for the periods of their use, and gave reasonably accurate results within the limits of the technology available at the time. DuPont switched laboratories over the years for good reasons, in efforts to get more accurate, more specific and less variable results, with lower levels of detection. DuPont repeatedly was active in developing better technology to improve analytical methods and get more accurate results. DuPont insisted on good QA/QC methods, above what DuPont was required to do by EPA methods."

6. "DuPont was highly proactive in continually seeking improved methodologies for measuring PFOA."

(Snyder Report at 11-31, ECF No. 2807-5.)

Thomas C. Voltaggio² states:

1. "In the 1970s, 1980s and 1990s, without any regulatory requirements or actions, and despite not being the manufacturer of PFOA, DuPont was proactive and implemented its own plan for environmental stewardship of PFOA. This included voluntarily communicating with regulatory agencies about PFOA although not specifically required under then-existing regulations, and implementing a number of measures designed to substantially reduce exposure to PFOA in the workplace and in the community. DuPont took these actions despite recognition that available scientific literature on human health effects did not establish any causal connection to any human disease."

2. "DuPont has voluntarily entered into agreements with regulatory agencies to study PFOA and to take extensive measures to reduce human exposure. The Company's voluntary actions have been proactive and consistent with good stewardship and leadership principles."

3. "DuPont's effluent discharges of PFOA at Washington Works have been lawful and permissible under applicable regulatory permits."

4. "Since PFOA was not

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