In re E. I. Du Pont De Nemours & Co. C-8 Personal Injury Litig.
| Decision Date | 29 March 2021 |
| Docket Number | Civil Action 2:13-md-2433,Case No. 2:17-cv-998 |
| Citation | 529 F.Supp.3d 720 |
| Parties | IN RE: E. I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION, This document relates to: Travis Abbott and Julie Abbott, et al. v. E. I. du Pont de Nemours and Co., et al. |
| Court | U.S. District Court — Southern District of Ohio |
DISPOSITIVE MOTIONS ORDER NO. 43
This matter is before the Court on Defendant's Motion for Application of Ohio Tort Reform, and for Remittitur or a New Trial (ECF No. 233), Plaintiffs’ Memorandum in Opposition (ECF No. 237), and Defendant's Reply (ECF No. 238). For the reasons that follow, the Court GRANTS IN PART, DENIES IN PART, AND FINDS MOOT IN PART Defendant's Motion.
This case is part of the multidistrict litigation ("MDL") In Re: E. I. Du Pont de Nemours and Company C-8 Personal Injury Litigation ("C-8 Personal Injury MDL"). The individual plaintiffs in the C-8 Personal Injury MDL are all part of a class ("Leach Class") certified nearly twenty years ago in a West Virginia state court. The Leach Class consists of approximately 80,000 residents of Ohio and West Virginia who drank water contaminated by releases of a chemical referred to as C-8 from DuPont's Washington Works facility near Parkersburg, West Virginia.
All C-8 Personal Injury MDL cases are subject to a settlement agreement executed over 15 years ago ("Leach Settlement Agreement") between the Leach Class and Defendant Du Pont. The Leach Class consisted of those individuals who for at least one year, had "consumed drinking water containing .05 ppb or greater of C-8 attributable to releases from Washington Works." (Leach Settlement Agreement § 2.1.1, MDL ECF No. 820-8.) After a massive epidemiological study that lasted over seven years and cost over $24 million, a Science Panel in 2012 delivered findings that linked C-8 to six human diseases, including kidney cancer
and testicular cancer ("Linked Diseases").
The Leach Settlement Agreement provided for the over 3,500 individual Leach Class members who suffered from one or more of the of the Linked Diseases to file individual personal injury cases against DuPont. As to the remaining 70,000-plus Leach Class members with any illness other than the Linked Diseases, DuPont was "forever discharge[d] from any and all claims, losses, damages, attorneys’ fees, costs, and expenses, whether asserted or not, accrued or not, known or unknown, for personal injury and wrongful death...." (Leach Settlement Agreement § 3.3, MDL ECF No. 820-8.) DuPont moved to have the cases alleging Linked Diseases centralized into the C-8 Personal Injury MDL and the Judicial Panel on Multidistrict Litigation granted the request in April 2013.
This Court held four trials, each lasting for over a month, of C-8 Personal Injury MDL cases with three trials going to verdicts, all in favor of the plaintiffs. DuPont appealed the verdict from the first trial to the United States Court of Appeals for the Sixth Circuit. The appeal received full briefing, assignment of a judicial panel, and oral argument before the panel. DuPont withdrew the appeal in February 2017, before a decision was issued.
On the same day the appeal was withdrawn, the fourth trial was ended in its third week without a verdict from the jury as part of a global settlement. DuPont filed notice with the Security and Exchange Commission of a $670.7 million global settlement of the 3500-plus then-pending cases, all of which were ultimately dismissed.
Since the global settlement, 100-plus cases have been filed in the C-8 Personal Injury MDL. The Abbotts’ case was the first of this group, tried in a consolidated trial with another MDL case, Angela Swartz and Teddy Swartz v. E. I. du Pont de Nemours and Company , Case No. 2:18-cv-00136. Plaintiffs Mrs. Swartz and Mr. Abbott contended that the C-8 from DuPont's Washington Works plant that was released into their drinking water caused Mr. Abbott to twice develop testicular cancer
, requiring removal of both of his testicles, and Mrs. Swartz to develop kidney cancer, requiring removal of part of her kidney. Both Mrs. Abbott and Mr. Swartz brought loss of consortium claims.
After a trial that lasted over a month, both sides presented motions for judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure. Relevant to the motion at bar, this Court held that Mrs. Abbott "is covered by the Tort Reform Act" but that her claims are "subject to the exception for substantial physical deformity, loss of use of a limb, or loss of a bodily organ system." (Trial Tr. at 12–15, Vol. 21, ECF No. 205.)
After deliberations, the jury delivered verdicts in favor of the Abbotts, awarding $40 million in damages to Mr. Abbott and $10 million to Mrs. Abbott. The jury could not come to agreement on the claims filed by Mrs. and Mr. Swartz. The Court accepted the Abbott verdict and declared a mistrial in Swartz. Judgment was subsequently entered to reflect the jury verdicts.
DuPont timely filed post-trial motions in the Abbott case: Defendant's Motion for a Mistrial (ECF No. 178) and Defendant's Motion for Application of Ohio Tort Reform, and for Remittitur or a New Trial (ECF No. 233). This Court denied DuPont's request for a mistrial. In re: E. I. Du Pont De Nemours and Co. C-8 Personal Injury Litig. , 2:13-MD-2433, 2020 WL 7863331 (S.D. Ohio Dec. 31, 2020).
On January 22, 2021, DuPont informed the Court and issued a press release indicating that all of the second group of C-8 Personal Injury MDL cases were resolved in a global settlement, with the exception of Abbott. Because Abbott was excluded from the global settlement, DuPont's Motion for Application of Ohio Tort Reform, and for Remittitur or a New Trial is ripe for review.
In a diversity case, federal law governs the district court's decision whether to grant a new trial and it is within the sound discretion of the trial court to make this determination. Conte v. Gen. Housewares Corp. , 215 F.3d 628, 637 (6th Cir. 2000) (citing J.C. Wyckoff & Assocs., Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1487 & n. 20 (6th Cir. 1991) ). DuPont moves under Federal Rules 59(a), 59(e), and 50(b) of the Federal Rules of Civil Procedure.
Federal Rule of Civil Procedure 59 governs motions to amend or alter a judgment. Fed. R. Civ. P. 59(e). According to the text of the rule, a new trial is permissible "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a)(1)(A). "Generally, a court may grant a new trial under Rule 59 if the verdict is against the weight of the evidence, if the damage award is excessive, or if the trial was influenced by prejudice or bias, or otherwise unfair to the moving party." Conte , 215 F.3d at 637. "However, while the district judge has a duty to intervene in appropriate cases, the jury's verdict should be accepted if it is one which could reasonably have been reached." Id. (quoting Toth v. Yoder Co. , 749 F.2d 1190, 1197 (6th Cir. 1984) ) (internal citations omitted).
Rule 50 of the Federal Rules of Civil Procedure permits a litigant who requests judgment as a matter of law under 50(a), as DuPont did here, to "file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59." Fed. R. Civ. P. 50(b). "In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law." Id.
DuPont asks the Court to (A) "apply the Ohio Tort Reform Act, Ohio Revised Code § 2315.18(B)(2), to Plaintiff Julie Abbott's noneconomic loss of consortium claim and reduce the award to $250,000," and (B) "order remittitur of Mr. Abbott's $40 million award and, in the alternative as to Mrs. Abbott, order remittitur of Mrs. Abbott's $10 million award, or grant a new trial [only on compensatory damages] if Plaintiffs do not accept the reduction." (Def.’s Mot. at 1, ECF No. 233.) In other words, DuPont asks this Court to affirm its prior finding that the Tort Reform Act applies to Mrs. Abbott's claim and to reconsider whether the she meets the exception to its application.
In their Memorandum in Opposition to DuPont's Motion, Plaintiffs request that the Court reconsider whether the Tort Reform Act applies to Mrs. Abbott, contending it does not. Plaintiffs further request the Court to affirm that, even if the Act applies, Mrs. Abbott is entitled to application of the catastrophic injury exception.
Under the Ohio Tort Reform Act of 2004, effective April 7, 2005, the Ohio Revised Code was amended to, inter alia , cap the amount of noneconomic damages recoverable in tort actions. Ohio Rev. Code §§ 2315.1–21. Under the Tort Reform Act, a "judgment for noneconomic damages" may not "exceed the applicable R.C. 2315.18(B)(2) damage cap, ... [e]xcept as provided in R.C. 2315.18(B)(3)." Simpkins v. Grace Brethren Church of Delaware, Ohio , 149 Ohio St. 3d 307, 321, 75 N.E.3d 122 (2016) (citing Ohio Rev. Code § 2315.18(E)(1) ). The applicable provision limits noneconomic damages to $250,000, and the statute explicitly defines "noneconomic loss" to include "loss of society, consortium, [and] companionship." Ohio Rev. Code § 2315.18(A)(4), (B)(2).
DuPont asks this Court to apply the Ohio Tort Reform Act's compensatory damages cap to the $10 million verdict awarded to Mrs. Abbott on her loss of consortium claim. Ohio Rev. Code § 2315.18(B)(2). DuPont contends that the events giving rise to Mrs. Abbott's loss of consortium are Mr. Abbott's cancer
and subsequent infertility, which occurred after their 2013 marriage, eight years after the effective date of Ohio's Tort Reform Act.
Plaintiffs respond, arguing:
Because DuPont's tortious conduct and...
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