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December 29, 2009 - Court Again Delays DuPont Appeal Ruling

The West Virginia Supreme Court has again delayed a ruling in DuPont Co.'s appeal of a $400 million verdict against the company for polluting the Harrison County town of Spelter.

Justices heard oral arguments in the case in early April, but did not issue an opinion before the spring term of court ended on June 25. They also did not issue a ruling during the fall term, which ended in late November.

A ruling now is not expected until the spring 2010 term, which starts in mid-January.

The DuPont appeal is one of the biggest cases to reach the court in recent memory, combining arguments over controversial medical monitoring rulings with heated disputes over whether West Virginia jurors award excessive punitive damages against companies.

Last year, Harrison County jurors ruled against DuPont in a lawsuit that argued the company illegally polluted the community of Spelter, north of Clarksburg, with lead, zinc, cadmium and arsenic from a zinc smelter. The award included a $55 million cleanup plan, a medical-monitoring program worth $130 million and $196 million in punitive damages.

The case at one point drew in Gov. Joe Manchin, who filed a friend-of-the-court brief urging the justices to at least hear a full appeal of the punitive damages DuPont was ordered to pay.

Chief Justice Brent Benjamin and Justice Thomas McHugh recused themselves because their former law firms worked on the case. Mercer Circuit Judge Derek Swope and Taylor Circuit Judge Alan Moats took their places.

Justices are actually considering three appeals: One is DuPont's main attack on the jury verdict; the second is the company's appeal of a circuit court ruling that it must cover any damages for one of the site's former owners, T.L. Diamond; and the third is an appeal by plaintiffs seeking to bring in another 200 property owners the circuit judge had blocked from the case because of decades-old lawsuit waivers.

The Spelter site was originally a DuPont gunpowder mill that opened in 1899. After that facility burned down, Grasselli Chemical Co. built a zinc smelter and a company town. DuPont bough Grasselli and operated the smelter until 1950, when an internal report showed that air-pollution upgrades would cost $325,000, court records show.

In the late 1990s, federal environmental officials began investigating the site. DuPont got involved, eventually repurchased the facility, and steered the cleanup toward the state Department of Environmental Protection's voluntary program, rather than the more stringent federal Superfund process.

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