RCNN Exclusive Report by Callie Lyons
In February, DuPont settled thousands of Mid-Ohio Valley C8 (PFOA) contamination cases at a cost of $670.6 million. Until now the details and terms of the Master Settlement Agreement have remained a carefully-guarded secret. RCNN has obtained a copy of the offer made to 3,500 eligible claimants for qualifying conditions including: kidney cancer, testicular cancer, thyroid disease, ulcerative colitis, pre-eclampsia and medically diagnosed high cholesterol.
The settlement is the latest development in what began as a class action lawsuit against DuPont brought by neighbors of Washington Works in 2002 over the contamination of several water supplies with C8, otherwise known as PFOA or perfluorooctanoic acid. Impacted communities include: Lubeck and Mason County, West Virginia; Belpre, Tuppers Plains, Pomeroy and Little Hocking, Ohio.
DuPont has been using the manmade compound at Washington Works since the 1950s in the production of Teflon and hundreds of other consumer applications. During that time the corporation released C8 into the air and water – contaminating the environment around the plant and sickening thousands. The substance was subsequently detected in every mile of the Ohio River.
The personal injury claims are being settled by disease category with a base award set for each medical condition – and additional payments from the extraordinary injury fund depending on the severity of the disease. For example, the base range for testicular cancer is $1.35 million; however the extraordinary injury fund could increase that amount by $250,000 if the patient suffered chemotherapy, radiation, or death resulting from the cancer. Similarly, the base award for kidney cancer is $1.35 million with the possibility of extraordinary injury funds of $250,000 – for those who have endured chemotherapy, radiation, or death.
A statement in the settlement packet explains that the numbers are not absolute and disease information and residency must be verified by a Claim Administrator:
“At this time, there is no definitive information available regarding your exact settlement value. However, we are able to confirm that if your claim is approved by the Claim Administrator that you will not receive less than the base award(s) identified for your Qualifying Condition(s) category.”
If it is determined that there is no medical record support to back a personal injury claim, the minimum recovery will be $1,500.
Due to the large number of cases, the process is expected to take six to nine months to complete. Individual attorney fees will be taken out of the settlement amount according to the original retainer signed by the plaintiff and there is a seven percent mandatory court fee that will be applied to every case. Four percent is reserved to pay attorney fees for the Multi District Litigation. Three percent will be allocated for expenses incurred for the benefit of all claimants.
People with personal injury claims who do not choose to participate in the settlement will have their cases continued in the judicial system – meaning that they may not go to trial for many years and the outcome is not assured.
The settlement itself was intended to be a secret. Participants are warned not to discuss or disclose the terms to anyone – particularly the media. Claimants are further warned that failure to keep the terms secret could result in a penalty from DuPont.
The settlement amount for ulcerative colitis is based on four tiers representing the severity of the condition. Tier One is the most serious and relates to those who have undergone surgery because of the ailment, while Tier Four relates to those who have medical records indicating chronic inflammatory bowel disease like Chron’s Disease, Irritable Bowel Syndrome, Gastritis, or Diverticulitis. The base award for Tier One is $290,000 – $300,000. The base award for Tier Four is $20,000 – $22,000. Those who have suffered extraordinary injuries including the placement of a colostomy bag or death resulting from ulcerative colitis may be eligible for an additional payment of $200,000 – $325,000.
Individuals who have claims related to thyroid disease have been assigned a base award of $38,000 – $40,000. Those whose thyroid had to be removed due to disease may be eligible for an additional $20,000.
There are no extraordinary injury funds for pregnancy-induced hypertension or high cholesterol.
Claimants who have suffered pre-eclampsia or pregnancy-induced hypertension are subject to a base award of $20,000 – $22,000 for those with medical records verifying their disease and $10,000 – $11,000 for those without records.
Plaintiffs with medically diagnosed high cholesterol may be eligible for a base award of $10,000. Individuals who filed a C8 personal injury case in the Southern District of Ohio prior to February 11, but who have no proof of a related condition are eligible for a base award of $1,500.
Participants must release DuPont/Chemours from future liability and provide evidence that they were exposed to C8 in their drinking water for at least a year.
If the Claims Administrator finds the claim lacking, the participant’s C8-related disease will not be eligible for future compensation. The rejected plaintiff will receive a payment of $1,500.
Participation in the settlement does not impact class members’ right to receive medical monitoring. The C8 Medical Monitoring program (www.c-8MedicalMonitoringProgram) is available to all members of the class and was established to screen for diseases linked to C8 exposure.
While this settlement agreement pertains to old cases, newly diagnosed individuals may still file claims. DuPont and Chemours have agreed to set aside funds in future years to settle future cases.
“Persons diagnosed with linked diseases within two years may file claims before that time limit expires. They will not be included in the settlement because it only encompasses the claims which have been listed prior,” explained class counsel Harry Deitzler. “New cases will not be in the MDL (multi district litigation) and will be tried in the court where they are filed or federal court if removed by DuPont.”
The statute of limitations for personal injury claims is two years from the date of diagnosis. It is expected that people who live in the Mid-Ohio Valley will continue to be diagnosed with related conditions for some time. C8 is resistant to deterioration and will be present in the environment around Washington Works for a thousand years unless a massive cleanup operation is ordered by the Environmental Protection Agency.