C-8 Class Action Settlement Documents
The complaint is the document that states the claim of a lawsuit. It contains the allegations which form the basis of the claim.
During the course of litigation, the parties entered into confidential settlement negotiations through a process known as court annexed mediation. Mediation is provided for as to all West Virginia Civil Actions through rule 25 of the West Virginia Trial Court Rules. Mediation in the Leach case, culminated with an agreement at Boston, Massachusetts on September 4, 2004. That settlement agreement in principle was the basis for the more detailed class action settlement agreement which was subsequently submitted to, and approved by, the court.
A motion was presented to the court on November 23, 2004, requesting preliminary approval of the proposed settlement. It includes a summary history of the litigation, a description of the proposed settlement, and a proposed plan for notification of potential class members. Of particular interest in this document is the description of the plaintiffs’ proposed community health and education project (which is subtitle B on page 7).
On November 23, 2004, the final settlement agreement was presented to the Circuit Court of Wood County for preliminary approval. In a class action settlement, the parties must seek preliminary approval of the court so that notice of the proposed settlement can be given to all potential class members. At a preliminary approval hearing, the attorneys present the proposed agreement and the proposed plan for providing notice. After hearing the evidence, the court either rejects or approves the settlement agreement that is submitted by the parties. At the conclusion of the hearing, the court will reaffirm or modify the definition of class members for purposes of the proposed settlement. The court will set a date for a final hearing so that any class members who wish to exclude themselves or object to the settlement can appear and be heard. Finally, the court will approve and order a plan of notification whereby the potential class members can be notified regarding the settlement and their right to be heard. In this case, the court granted preliminary approval.
Motion for Order Approving Final Settlement
On February 24, 2005, a motion was filed requesting the court to grant final approval of the proposed settlement. The hearing date had previously been set by the court at its hearing on November 23, 2004. In the interim, notice of the proposed settlement was provided to all putative class members, either through direct mail or court-approved media.
Transcript of the Final Hearing -- February 28, 2005
A transcript is the verbatim written recording of what occurs in a court hearing. In this transcript, plaintiffs' counsel asks the court to approve the settlement agreement and create the Brookmar health project and the settlement science panel. The presentation provides a fairly good historical perspective on how the case developed up to that point, and where plaintiffs' counsel intended for it to go. Keep in mind that nobody fully comprehended the magnitude of the task (as of 2/28/05), and sometimes plaintiffs' counsel had to choose sentences carefully to maintain the flexibility for the health project to adjust to various unforseen issues that would certainly arise between the time when the first blood sample would be taken and the time when meaningful data results would land in the public domain.
Beginning on page 6 is Harry Deitzler's summary of the entire case and settlement for the court. The testimony of lead plaintiff Joe Kiger starts on page 21. There you can see that all Kiger really wanted from the very beginning was truthful answers to the question of whether or not the C8 in his drinking water created a health hazard for him, his family, and the community. Neither Dupont nor the government wanted to provide him with answers. (The Lubeck Public Service District which provided his water was totally clueless.) Joe Kiger and his co-plaintiffs had to go through a lot of abuse to get to the point where the facts were more than three years ago when this hearing occurred.
Finally, the testimony of Dr. Paul Brooks starts on page 73. You can follow the development of the health project that plaintiffs' counsel created to find out what was happening to the health of the estimated 60,000 to 80,000 persons who were most directly affected by C8 contamination in their water. It is interesting to try to comprehend all of the unknowns that Dr. Brooks and Art Maher were dealing with in creating a mechanism to gather such a large pool of data. Also, in Dr. Brooks' testimony you can see that Dr. Brooks recognized the importance of making the data public when Brookmar's work was concluded.
On February 28, 2005, the court conducted a hearing for purposes of allowing all affected persons and parties to present the settlement and any concerns, objections, or other information regarding the final settlement. The court heard a detailed presentation regarding all aspects of the settlement. At the conclusion of the hearing, the court determined that the settlement would be approved for the class as previously defined. The approval order was signed by the court and entered on February 28, 2005.
This document is the verbatim settlement agreement approved by the Circuit Court of Wood County West Virginia, Judge George W. Hill presiding, on February 28, 2005. Specific points of interest include section 2.1.1 which describes class membership, section 6 which tolls time limits until the science panel returns its findings, section 12.2.3 which describes in sub sections (a) and (b), two phases of the science panel’s work, section 12.3.2 which describes the duties of the medical panel and section 12.4 which establishes the medical monitoring fund. Also of interest is section 11 which describes the ongoing water treatment obligations of DuPont.
On May 16, 2008, Brookmar delivered to the court all data acquired by the Brookmar Health Project. The data that was filed should not be confused with health project results. The actual health project results have been separately tabulated, graphed, and stratified by West Virginia University (based upon the Brookmar data that was filed pursuant to this order) so that any interested person can review anonymous health information and comparisons regarding the affected population of approximately 70,000 residents. In addition to placing the data in the custody of the court clerk, this court order explains how universities, institutions, and scientists can acquire access to the raw data that was filed. All organizations will have the option to do further study of the database for any purpose that would be beneficial to the affected population or to medicine, science, or society. The court's order also provides that individual participant identities and medical information cannot be revealed to any person or entity at any time without the participant's written consent. Brookmar has added tabulated and stratified totals (derived from the filed data) for public inspection at The C8 Health Project WVU Data Hosting Website .
The Circuit Court of Wood County received a status update from the parties and the science panel on May 18, 2011.
In addition to the Settlement Agreement , the Transcript of Proceedings , the Final Order , and the Bower case (Bower v Westinghouse 206 W.Va. 133, 522 S.E.2d 424, 1999), the work of the settlement science panel is set forth in contracts between the court designated administrator (Garden City Group, Inc.) and the individual panelists. A sample copy of the panelists' contracts (with amendment ) was filed in the Circuit Court of Wood County January 8, 2009, attached exhibits 6 and 7 of plaintiffs' " Notice of Counsel Attendance: Court Courtesy Meeting With Science Panel ", and are available for examination at the office of the Circuit Clerk of Wood County, Parkersburg, West Virginia.
Science Panel Quarterly Reports The settlement science panel is required to provide quarterly progress reports to the parties pursuant to the Settlement Agreement (page 16, section 10.2.2(a)(3)). The reports must contain the expected time of completion of services under any of the contracts described in section 10.2.2, copies of all contracts and certifications executed pursuant to section 10.2.2(a)(2), and an accounting of funds expended for completion of services described in section 10.2.2 or for duties of the science panel as described in section 12.2. Copies of all current science panel quarterly reports were filed in the Circuit Court of Wood County January 8, 2009, attached exhibit 8 of plaintiffs' " Notice of Counsel Attendance: Court Courtesy Meeting With Science Panel " and are available for examination at the office of the Circuit Clerk of Wood County, Parkersburg, West Virginia.
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