Why is the C-8 Class Action Unique and Totally Different from any Class Action Before it?

There are components of the Wood County Circuit Court class action settlement (Leach, et al. v. E. I. DuPont de Nemours and Co.) that are without precedent, both in the legal system and also with regard to the study of human health.

The Human Health Project

Without a doubt, the most far reaching and unprecedented aspect of the DuPont PFOA C8 settlement is the sheer magnitude and scope of the human health project and related human health study that the settlement created. In-depth health histories and comprehensive blood screenings were obtained from almost 70,000 people, constituting effectively the entire community population must significantly affected by DuPont’s C8 water contamination.

To accomplish that impressive result, Dr. Paul Brooks and Art Maher, principals of Brookmar, Inc., staffed six separate health clinics. Through Brookmar, Inc., they individually interviewed all project participants, procured and tested blood samples, verified a large percentage of the reported health issues against actual medical records, computerized all related data, reported individual blood test results to each person tested, compiled the health and blood data in a data base including millions of columns of data (without participant identifications), paid the Brookmar staff, paid the participants, dismantled and liquidated the clinics, and coordinated the financing so that all interest and liquidation proceeds were reinvested into the project.

Although there have been many studies of large populations that address a single medical condition or pharmaceutical, no health study in history has ever acquired as much medical history and such detailed blood chemistries from a population of this size. In addition, virtually all epidemiological studies in the past have relied on statistically extrapolated data concerning a large population. By contrast, instead of trying to estimate a statistically valid profile of the population that was exposed to C8 contaminated water, this project has made it possible to examine the primary profile of the entire population.

The "sheer magnitude" factor will become significant as scientists screen for disease occurrences which may exist in rates less than one in one thousand, or in some cases, less than one in several hundred thousand (i.e. Moebius Syndrome, a birth defect). The typical small statistical sample used in epidemiological studies would not likely pick up spikes in such uncommon diseases or effects that may be, or may not be, relevant to chemical exposure. Also, there may be issues of immunological response that will only become detectible when in-depth histories and detailed blood chemistries are provided for such a large population, instead of a small statistical sample.

The C8 specific validity of exposure comparison results is particularly enhanced by an internally positioned control group. The tested population consists of people who have low C8 exposures and blood levels versus people who have high C8 exposures and blood levels. Because they essentially live in the same community, other exposure issues and environmental factors remain the same for each group. This fortuitous advantage makes the comparison results much more reliable than the usual epidemiological technique of trying to replicate a control group from some other community. (To the extent that group numbers include those who have moved to or from the area, the dispersion is in such a random manner that no significant portion of the population has been subject to the large scale effect of any single environmental factor to the exclusion of the factors that impact the population as a whole.)

For better or worse, the population is the largest C8 exposure experiment on the planet.

Benefit to All Class Members

The use of the up-front settlement money to fund the Brookmar Health Project accomplished something that is particularly unique to this class action settlement. It effectively benefits every putative member of the class, regardless of whether that individual is found, signs up, or participates.

By contrast, in a typical class action, the only people who benefit are the class members who fill out the forms after receiving notice of the settlement. The money is divided by the number of class members and subsequently passed out to the class members who respond to a court ordered notice. Anyone else misses the boat entirely. In this case, even if everyone in the class responded, splitting and distributing the fund would have resulted in a minimal benefit of less than $1,000 per person to the individual class members and no benefit at all to the class or community as a whole.

By utilizing the money to fund a health study of the entire community, the probability of benefitting all class members was dramatically increased. Each participant who provided health histories and blood samples received $400 and detailed blood screenings. Many participants were notified of significant disease issues of which they would not have otherwise been aware. Some of those health notifications concerned health issues that were potentially life threatening to the individual participant.

As a result of the health project, the class members and the rest of the world population exposed to C8 will have the benefit of knowing, with as much certainty as is scientifically possible, whether or not C8 exposure creates a human health risk. Because of the fact that DuPont’s inadvertent C8 proliferation has been so widespread, C8 is in the blood of virtually every human on earth. For that reason, this is truly a class action settlement that potentially benefits the entire world population.

A Scientific Panel Instead of a Jury

The West Virginia/Ohio DuPont C8 class action settlement is unique in that the disputed question of fact will be decided by a jointly selected panel of impartial experts instead of a trial jury. Although they are epidemiologists by profession, the panel of experts is empowered to utilize expertise and information from every scientific discipline, including, for example, medicine, toxicology, immunology, and genetics (in addition to epidemiology). We are not aware of any other case of this magnitude where the decision of "cause versus effect" has been submitted to a science panel in lieu of a jury.

Medical Monitoring

The manner of medical monitoring is unique to this class action settlement. If the probable link is found between C8 and human health, the responsible corporation, DuPont, pays for medical testing of the class members only if the class members actually avail themselves of the tests. There has been frequent criticism of other medical monitoring cases because the settlement money is paid in a lump sum up front and divided among the persons who respond after receiving (or otherwise becoming aware of) the settlement notice. When medical monitoring funds are simply divided (by the number of participants) and distributed, the participants may, or may not, use the money for the purpose for which it was intended.

From a fairness standpoint, it is none of the offending corporation’s business that the person elects to purchase, or not to purchase, medical monitoring with the settlement funds. The corporation caused the damage and therefore the persons who were damaged may rightfully claim compensation regardless. However, the justification for medical monitoring is partly that people will actually get medical testing and discover diseases caused by the chemical exposure, which diseases may not have otherwise been discovered. Clearly, there is justice in forcing the corporation to pay the cost of medically prudent testing that wold not have otherwise been needed if the corporation would not have exposed the individuals. In this case, we have little doubt that the significant size of the agreed medical monitoring fund was positively impacted by the commitment that medical monitoring would actually occur, as a pre-condition of Dupont's obligation to pay.

Perhaps equally significant and unique in this case is the fact that the attorneys who represent the class will only be paid fees related to the medical monitoring portion of the settlement to the extent that medical monitoring actually occurs. By contrast, a typical medical monitoring settlement requires that the attorneys get a lump sum payment based on the total amount of the medical monitoring settlement, regardless of whether or not any of the medical monitoring ever occurs at all.

Water Filtering

A very important aspect of the West Virginia/Ohio DuPont C8 settlement is the fact that the attorneys for the class negotiated a benefit for the six local water districts that serve the members of the class, notwithstanding the fact that the attorneys did not represent the water providers as their counsel on those claims. As attorneys for the class, we felt that this was an important issue for our class members who relied upon those water sources for drinking water, cooking and bathing. This was particularly germane in light of the fact that the final science concerning the extent to which PFOA/C8 may or may not cause one human health problem or another, could remain unresolved for a period of years pending final science panel conclusions.

Because of the very real health concerns implicated by toxicology studies on animals (that cannot be safely replicated in human beings), we felt that it was critical to make C8 free water available to the persons whom we were representing, regardless of whether or not the water providers recognized or acknowledged the somewhat obvious health concern. In the end, although the agreement provided that each water district could accept or reject the offer of free filtering, all of the six water districts took advantage of the water filtering project. Every customer of the six affected water districts now has clean and uncontaminated water flowing into his or her home as a result of this class action settlement.

Personal Responsibility

The fundamental justice of this settlement may be that the company that put C8 in the public drinking water (without testing it first to determine what the effects would be on humans), is now paying for the project that will determine for science, the courts, and the public, whether or not C8 harms humans. Perhaps it is poetic justice because the risk/danger issue is a question that the company logically should have resolved before the chemical was ever put into the public’s water in the first place.

With all due respect to its initial error of judgment, at this point, we must give deference to DuPont for stepping up to the plate and doing its part to take corporate personal responsibility for its C8 contamination and the resulting impact upon the persons residing in the six affected water districts who comprise the class action for this litigation. As to those people, DuPont appears to be taking action to right its wrong and accept responsibility as a good corporate citizen.