DuPont Settles Federal Class-Action Lawsuit Over Contaminated Drinking Water

DuPont Co. agreed July 8 to settle a federal class-action lawsuit that was filed nearly a decade ago on behalf of residents in and around the village of Hoosick Falls, near Albany, New York, where the drinking water had been contaminated for decades by factories that used manufacturing chemicals produced by the company.

A person briefed on the settlement negotiations said the tentative agreement includes roughly $25 million that will be distributed among current and former residents of the community who had been exposed to the chemicals through contaminated drinking water. Many were later found to have elevated levels of the pollutants in their bloodstreams. It also includes additional financial support for ongoing medical monitoring of residents who enrolled in that program.

The tentative agreement was reached as a multi-week trial in the case had been scheduled to begin Monday in U.S. District Court in Albany, pitting a small community against one of the world's largest corporations. The trial was canceled last week and a settlement conference is scheduled to take place Tuesday before U.S. District Judge Mae A. D'Agostino, according to court records.

DuPont had declined to be part of an earlier $65 million settlement involving three other companies in the case: Saint-Gobain Performance Plastics and Honeywell International — which had both operated a manufacturing plant in the village — as well as 3M.

In recent months, as the case against DuPont wended toward trial, there had been a protracted legal battle over the admission of evidence and the expected testimony of expert witnesses. They included filings that described how the company had known about the potential health dangers of the chemicals but allegedly failed to tell its customers — including the operators of the manufacturing facilities that had spewed the chemicals from their smokestacks in the small eastern Rensselaer County community dating to the 1960s.

DuPont, in its trial brief, asserted that it was one of many companies providing those chemicals to the manufacturers, and that it did not control their factories or have a duty under law to warn them about any potential danger from the products. The brief also asserted that the manufacturing companies handled the products "shoddily" and were responsible for the groundwater pollution.

DuPont also argued in its brief that the "sophisticated" manufacturing companies were also global firms and had received information from industry groups and other suppliers about the risks of the chemicals.

"In addition to that wealth of outside information, Saint-Gobain, for example, employed scientists, industrial hygienists, toxicologists, chemical engineers, and environmental experts," stated DuPont's trial brief. "The evidence will show it kept abreast of developments concerning the chemicals used in its manufacturing facilities, including at Hoosick Falls."

Four companies are alleged to have had varying roles in the decades-long pollution of the community's water supplies, which were contaminated with the perfluorinated chemicals used at the various factories in the village through the years. The earlier settlement with three of those companies had secured cash payments and long-term medical monitoring for thousands of property owners and residents, including those who were found to have elevated levels of perfluorooctanoic acid, or PFOA, in their bloodstreams.

The broader class-action lawsuit was filed in 2016 on behalf of the community's residents by attorneys that include James Bilsborrow and Robin Greenwald from Weitz & Luxenberg in New York City, and Stephen G. Schwarz and Hadley E. Lundback, who are with the Rochester firm Faraci Lange.

Lundback had previously said they intended to "require DuPont to pay for multiple additional years of medical monitoring beyond the 10 years funded by the prior settlement. If we are successful, it will better protect the exposed population providing more years of surveillance at no cost to the residents. That is our goal."

The proposed settlement must be approved by the federal judge in the case.

The plaintiffs' attorneys had intended at trial to cite evidence they said showed that by the 1970s, DuPont had conducted blood tests on its own workforce and determined that employees working with Teflon products had retained PFOA in their blood, and that it took years to dissipate after any exposure ended.

In the 1970s and '80s, the company's scientists also performed toxicology studies that demonstrated animals developed tumors due to exposure to PFOA. By the 1990s, according to the plaintiffs, DuPont personnel considered PFOA an "animal carcinogen"; in 1990, an epidemiologist with the company noted a rat study found that exposure "did not preclude human route of testicular tumors."

"DuPont recognized that this toxicity information was serious," states a trial brief filed by attorneys for the class-action plaintiffs. "None of this information was relayed to DuPont's fabric coating customers, including those operating in Hoosick Falls."

In the air and ground

DuPont began using ammonium perfluorooctanoate, or C-8, in the early 1950s. It's a synthetic chemical that was invented and produced by 3M to help manufacture fluoropolymer products, which are resistant to heat and water. One of the products sold by DuPont carried the brand name of Teflon, which was sold in liquid, powder and granular form.

Many of the small factories in and around Hoosick Falls used those products — or other forms of them — in their manufacturing processes. Often, the chemicals were dumped on the ground or settled onto the ground of the surrounding area from the smokestacks.

Among DuPont's legal arguments was the contention that no proof exists showing that the perfluorinated chemicals that polluted the water supplies or bloodstreams of the residents had originated from its products as opposed to those of other suppliers.

A federal judge, in an earlier ruling that kept the case on track for trial, had characterized that argument as "flawed" and noted there was ample proof that DuPont had for years, beginning in the 1970s, provided large quantities of the chemicals used to make PFOA to the McCaffrey Street manufacturing plant blamed for much of the pollution.

The judge said the plaintiffs' attorneys had provided evidence of a "logical nexus" between the chemicals supplied by DuPont and the contaminants found in the drinking water and bloodstreams of the alleged victims.

The judge also rejected DuPont's argument that it should not be subjected to punitive damages because its conduct was not "wanton" or in "reckless disregard" and the company was unaware that the manufacturers who used its products would handle them "in a way that would risk the health and environment of others."

That judge, U.S. District Senior Judge Lawrence E. Kahn, also had said there was evidence DuPont knew PFOA would be released into the environment from its products and that it "was aware of the risks posed by PFOA, but did not share the full breadth of that information with either its customers or the communities impacted."

Kahn noted that DuPont had conducted a primate study in 1999 and learned there were "highly damaging effects stemming from PFOA," but then allegedly "made several misrepresentations to government agencies and public organizations" claiming that 97 percent of its chemical products were destroyed in processing.

That evidence "suggests a conscious effort on the part of (DuPont) to hide and obscure the damaging effects of its products," Kahn wrote. "Taken as a whole, the court finds that this evidence, if proven at trial, could be enough for a reasonable jury to conclude that (DuPont's) actions were 'wanton or in conscious disregard of the rights of others.'"

The litigation has sought to compensate residents in that area for the potential health consequences of their exposure to the chemicals, as well as the potential loss of property value, and to provide a system of early detection for any related health issues they may suffer in the years ahead.

More than 2,500 claims were submitted by residents who received compensation as well as access to medical monitoring in the first settlement.

The manufacturing plant that Saint-Gobain has operated on McCaffrey Street in Hoosick Falls since the 1990s had been a central focus of pollution concerns. The plant is adjacent to the village's water treatment plant, which pulled water from underground wells that have been polluted with PFOA. Honeywell's predecessor corporation, Allied Signal, operated the facility from 1986 to 1996, one of five companies that ran the plant since 1956.

The payments under the initial settlement were divided among roughly 2,000 qualifying property owners. The amounts received depended on multiple factors, including the number of certified class members. Some were entitled to medical monitoring if the level of PFOA detected in their blood was more than 1.86 parts per billion. Others were compensated based on the loss of their property value, which would be measured against the value of their residential property in 2015 — before the stigma of the pollution had arguably damaged the local real estate market.

Another portion of the earlier settlement — categorized as the "nuisance settlement class" — set aside $7.7 million to compensate those who had a private well contaminated with PFOA, if the pollution was detected on or after Dec. 16, 2015. That portion of the settlement applies to individuals and may include more than one person per household, including tenants.

That payout was about $10,000 per person.