July 8th, 2017

In the second of her reports for The Intercept’s Teflon Toxin series—The Case Against DuPont—Sharon Lerner draws the liability line from Wilbur Tennant’s cows to Cincinnati attorney Robert Bilott to Parkersburg elementary school gym teacher Joe Kiger and finally to DuPont employee Bernard Reilly that begins to crumble DuPont’s toxic wall.

Bernard Reilly had been an in-house counsel at DuPont since 1977, and for most of that time he worked in the environmental group within the company’s legal department. Reilly was assigned to help with the Tennant case, and he was worried about the possibility of somehow letting potentially incriminating information he was working on slip out. “Each time you put pen to paper or fingers to keyboard and create a new document,” he warned his colleagues in an email he sent in September 2000, “assume you will have the plaintiffs’ lawyers as recipients since we must produce each and every such document unless it is attorney/client privilege.”

Yet ironically it was Reilly himself who spilled the beans about C8 when he sent personal emails about the chemical through the company’s computer system. Consequently, just as Reilly had warned, when Bilott asked for C8-related materials in discovery, he received Reilly’s emails, which made clear not just that the company was hiding something, but also that he himself had become part of the story. One of Reilly’s emails, for instance, contained the following passage: “The lawyer for the farmer finally realizes the surfactant issue. He is threatening to go to the press to embarrass us to pressure us to settle for big bucks. Fuck him.”

Hubris in your enemies can be a magnificent boon. A corporation is profitable—and that’s the only reason a corporation exists when it does one, or both of two actions: reduce costs, increase prices. The former is much more popular, and far more likely to get a corporation in trouble. In one of his emails Reilly wrote:

The plant tries to save money and apparently did not consider how it might look that this guy’s cows are drinking the rainwater that has percolated through our waste.

Reilly prevailed in convincing DuPont to not go to trial and in 2004, a settlement was reached. However…

DuPont agreed to settle the class-action suit filed by Bilott’s firm and two others, which covered a class that had ballooned to 80,000 people in six water districts. The agreement was approved in early 2005 for an amount that could reach $343 million and was unusual in a number of ways. Generally, a legal settlement marks the end of a case, when attorneys and clients divvy up the cash and move on. Because the burden of proving that exposure to an unregulated chemical causes health problems is so onerous, plaintiffs who get any money in such cases may be especially inclined to let the matter drop. But the 2005 settlement of the C8 class-action lawsuit was also a beginning. Instead of just cutting checks, the agreement created a health project to collect medical information on the exposed population and determine whether exposure to C8 had actually harmed people.

At first, some doubted that the health project could enroll enough people to be useful; huge numbers of participants are usually necessary to show that a chemical causes harm. But the team of local researchers, headed by a retired physician named Paul Brooks and a former hospital administrator named Arthur Maher, threw themselves into the task. In part by offering each participant $400, they managed to interview and collect blood samples from 69,000 people [including members of my family, JH] who had lived or worked in the six affected water districts for at least a year.

That one year grew to eight and the results were damning.

By the time the C8 Science Panel completed its work in 2013, its members had spent eight years and around $33 million exploring the connections between C8 and human health. The panel even came up with a model that could estimate residents’ exposure levels based on where they lived and historical concentrations of C8 in air, groundwater, and the Ohio River. Linking that information to health data helped the three scientists find likely connections to six diseases: high cholesterol; a form of bowel disease called ulcerative colitis; pregnancy-induced hypertension; thyroid disease; testicular cancer; and kidney cancer.

Their results skewered DuPont’s hopes that its animal data might not apply to humans.

The results also led to the the next round of lawsuits.

More tomorrow in Part IV of How Poisoned Is My Valley

Previously in How Poisoned Is My Valley… and from last year: TEFLON ISN’T THE PROBLEM… and WHAT I’M READING: HOW POISONED IS MY VALLEY….

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