By KENNETH HART - The Independent
ASHLAND — Attorneys for DuPont have given notice of their intent to appeal a portion of the $1.3 million verdict returned against the company in July in connection with a 2004 chemical release at its Wurtland facility.
The attorneys, John M. Famularo, Daniel E. Danford and Kristen K. Orr, all of Lexington, filed notice Thursday in U.S. District Court of their intent to appeal the verdict returned in favor of Randy Craft — one of the six plaintiffs in the initial group to have their claims against DuPont go to trial — to the Sixth Circuit Court of Appeals in Cincinnati.
Craft was one of 179 plaintiffs who sued DuPont following the Oct. 11, 2004, leak, which sent clouds of sulfuric acid billowing over large portions of Greenup County. The plaintiffs alleged they suffered various health problems as a result of being exposed to the chemical, including skin irritation, breathing problems, burns, persistent headaches and others.
On July 13, a jury found that DuPont was grossly negligent in the incident, and also determined that as a result of that negligence, the plaintiffs were entitled to receive 10 times the monetary damages they would have otherwise collected.
Jurors awarded a total of $130,000 to the initial group of six plaintiffs. However, applying the punitive damage multiplier brought the plaintiffs’ total award to $1.3 million.
DuPont indicated it would appeal the verdict. However, Judge David L. Bunning had earlier ruled that the company could not do so until all the plaintiffs’ claims were resolved.
In the notice of appeal, though, DuPont’s attorneys argue that they have the right to go ahead and appeal the Craft case to the Sixth Circuit because the July 13 verdict completely resolved that particular case, one of several that were consolidated for the purpose of trial.
The jury awarded Craft $1,000 for mental pain and suffering, which was increased to $10,000 by the multiplier.
In court pleadings, DuPont’s attorneys argue that under the law, consolidated cases remain separate actions, and that when one matter is disposed of, it becomes appealable at that point.
Bunning has yet to enter a final and appealable judgment in the Craft case, according to the filing. However, DuPont’s lawyers claim that doesn’t rob them of their right to appeal the verdict.
The July verdict left 173 plaintiffs with claims pending against DuPont. The next group of cases is scheduled to be tried beginning Jan. 11. The gross-negligence finding will apply in all subsequent phases of the litigation, meaning the only issue future juries will have to decide is whether the plaintiffs are entitled to be compensated by DuPont.
A conference aimed at reaching a possible settlement in the case is scheduled for Dec. 2 before Judge Amul R. Thapar.
The 2004 leak was caused by a ruptured pipe at the Wurtland plant. The incident resulted in the release of sulfur trioxide, a chemical that formed white clouds containing droplets of sulfuric acid.
A number of the plaintiffs suing DuPont are police officers, firefighters and other emergency personnel who responded to the scene after the leak was reported.
DuPont has acknowledged that a leak occurred at the Wurtland plant on the day in question, but disputes the notion that the incident was the cause of the problems alleged by the plaintiffs.
