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.
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 most significantly affected by DuPonts C8 water
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.)
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 DuPonts 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.
The West Virginia/Ohio DuPont C8 class action settlement is unique in that the disputed question of whether C8 is linked to human disease has been decided by a jointly selected panel of impartial experts, instead of a trial jury. Although they are epidemiologists by profession, the panel of experts was 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" was submitted to a science panel in lieu of a jury.
The manner of medical monitoring
is unique to this class action settlement. If one or more probable links are 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.
a fairness standpoint, it is none of the offending corporations
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
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.
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 impacted local water
districts and numerous private well users that serve the members of the class, notwithstanding the
fact that the attorneys did not represent the public 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 impacted water supply could accept or reject the offer of free filtering, all of the six public water districts and numerous private well ownders took advantage of the water filtering project. Every customer of the six affected water districts now has water flowing into his or her home that is being filtered to remove C8 as a result of this class action settlement.
The fundamental justice of this settlement may be that the company that put C8 in the 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 community's drinking 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 who comprise the class members 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.
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