On October 7, 2015, a Columbus, Ohio, federal jury returned a $1.6 million verdict against chemical giant DuPont for plaintiff Carla Bartlett. In that verdict, the jury determined that water pollution of a certain toxin from DuPont’s Washington Works Plant in Parkersburg, West Virginia, caused Bartlett to develop kidney cancer. That toxin is known as “C8”: a surfactant which, until 2014, was used by DuPont in its Teflon® manufacturing process.
Bartlett’s lead trial attorney, Mike Papantonio, of the Pensacola, Florida, law firm Levin Papantonio, said that the verdict spoke “truth to power” about DuPont’s decades-long history of C8 pollution of the Ohio River. Reflecting on this first verdict, in the C8 litigation, Papantonio stated: “What this litigation has revealed is the horrors of C8 and its pervasive toxicity. And the huge problem is this C8 is biopersistent. Even though Carla Bartlett is no longer drinking water contaminated with C8, because C8 is biopersistent, it will be in her body for decades to come.”
“Biopersistence” refers to the ability of a chemical substance to remain in the body, even after the body has stopped consuming water or food contaminated with the chemical. One of the key issues to understanding that impact is the issue of biopersistence of the chemical. When compared to chemicals which are not biopersistent, biopersistent chemicals have a greater opportunity to result in harm to humans because the true “dose” of the toxic chemical ingested increases with the extended time in which the body is exposed to the toxic chemical.
Evidence introduced during the Bartlett trial shows that, beginning no later than 1979, DuPont knew C-8 was biopersistent. In addition to being told by 3M, the manufacturer of C8, that the chemical is biopersistent, evidence generated by DuPont’s Haskell Laboratories revealed to DuPont that the half-life of C8 in human blood is several years. Because half-lives refer to how long it takes for the body to clear one-half of a substance, C8 can take 20 to 25 years to be cleared from the body completely, assuming no additional C8 is ingested. This ridiculously long exposure time, the Bartlett attorneys argued, put DuPont on notice that it never should have polluted the Ohio River with this toxin.
When DuPont first learned in 1979 that C8 was biopersistent, it was already polluting the Ohio River with C8. The water was being discharged into the Ohio River directly through the infamous Washington Works “Outfall No. 5”. This contaminant then worked its ways into the Ohio and West Virginia drinking water aquifers which connect to and are recharged by the Ohio River.
As DuPont’s knowledge of the dangers of C8 increased, so too did its pollution of C8 into the Ohio River. DuPont’s own discharge records showed that, from 1979 to 2000, DuPont’s C8 pollution increased by several hundred percent per year. A recent study by the C8 Science Panel (the Brookmar Data Set) showed that at least 69,000 people in the mid-Ohio River valley were exposed to enough C8 contamination to put them at risk for, among other illnesses, kidney cancer, testicular cancer, and a serious type of inflammatory bowel disease known as ulcerative colitis.
But DuPont’s C8 contamination legacy extends far beyond the Parkersburg area. Research published in 2014 conducted by scientists from the University of Cincinnati College of Medicine studied 51 young girls from the Greater Cincinnati area. Cincinnati is located on the Ohio River, approximately 285 miles downstream from the Washington Works Plant. That study showed that 48 of 51 of the young girls studied had extremely high C8 blood serum levels and that the source of that C8 was most likely the Washington Works Plant. Just like Carla Bartlett, these young girls now will have C8 in their bloodstream for several decades.
Recent though they are, the Cincinnati data should come as no surprise to DuPont, as DuPont has known that C8 has an affinity for water. In a September 2001 email, discovered during the C8 litigation, DuPont in-house environmental affairs counsel, Bernie Reilly, described the biopersistence problem as follows: “It is very persistent in the environment, and on top of that, loves to travel in water and if ingested or breathed wants to stay in the blood. The body thinks it is food, so pulls it from the intestine, the liver then dumps it back to the stomach because it can’t break it down, then the intestine puts it right back into the blood.”
In discussing the importance of the biopersistence issue to understanding the C8 conundrum, Papantonio observed, “Look, this isn’t a problem we discovered in litigation. Rather, it is a problem we discovered that DuPont’s own lead attorneys on C8 were stressing time and time again to DuPont management: biopersistence is a horrible thing and we need to quit dumping C8 into this river, into the homes of the mommas, and daddies, and children, all along the Ohio River.”
A November 2000 email of DuPont attorney John Bowman, who handled the litigation relating to C-8 in the 1990s and early 2000s, echoes Papantonio’s point: “My gut tells me the biopersistence issue will kill us because of an overwhelming public attitude that anything biopersistent is harmful.” Even more telling is Bowman’s reflections of DuPont’s actions and inactions in the preceding decades: “Our story is not a good one, we continued to increase our emissions into the river in spite of our internal commitments to reduce or eliminate the release of this chemical into the community and the environment because of our concern about the biopersistence of this chemical.”