The New York Times recently did a piece on Rob Bilott, a corporate defense attorney, who has taken on the DuPont chemical company for chemical pollution. The piece introduces you to Bilott, a partner at Taft Stettinius & Hollister, who one day received a call from a farmer in Parkersburg, West Virginia, his grandmother’s hometown. Bilott almost hung up on the caller, until he mentioned Bilott’s grandmother.
The farmer had called him because his cows were dying, and heard that Bilott was an environmental lawyer. But Bilott didn’t represent plaintiffs, he represented large corporate clients, and his specialty was defending chemical companies.
So how did he go from that to fighting against DuPont? Bilott decided to meet with the farmer because ‘‘It just felt like the right thing to do,’’ he says. ‘‘I felt a connection to those folks.’’ When meeting with the farmer, the farmer tells Bilott about his siblings and him running the cattle farm. A farm that at one point had 200 cows, but now only 7. Part of the property where the cows grazed the family had sold to DuPont back in the 1980s. The area became known as the Dry Run Landfill named after the creek that ran through the property.
The farmer shows a video to Bilott. At one point it zooms into a section of the creek, unnaturally frothing up. The farmer notes he’s removed two dead deer and two dead cattle from this area. The video goes on to show a large pipe running into the creek pouring green discharge into the water where it bubbles to the surface. The video continues to show views of cows, unhealthy and unnatural. As Bilott continues to view the video and look over pictures he realizes how bad it really was. Bilott decides to take the farmer’s case.
The First Case
Over the years Bilott had worked with companies to ensure that his clients complied with environmental regulations. While he had been representing chemical corporations, and not suing them, his law firm decided to take on this case. Thus, Bilott filed a federal lawsuit against DuPont back in 1999.
During his discovery process Bilott learned of a reference to a substance called “PFOA,” which he had never heard of before. He eventually learned that it was short for perfluorooctanoic acid. The substance has been manufactured since the 1940s in industrial quantities, and present in our everyday environment. However, it is a toxicant and carcinogen in animals.
Bilott eventually received a large amount of documentation from DuPont related to PFOA. 110,000 pages to be exact. What he discovered was that DuPont had known for a long time that PFOA was bad stuff. He learned that 3M (a manufacturing corporation) and DuPont had been conducting secret medical studies on PFOA for more than four decades. In fact in the 1970s, DuPont learned that there were high concentrations of PFOA in the blood of factory workers at one of their sites. They chose not tell the E.P.A. at the time. In 1984, DuPont knew that PFOA was present in local water supply, and yet again declined to disclose this.
DuPont eventually looked into developing an alternative to PFOA. Discussions were held regarding whether to switch to the new compound, and DuPont decided against it. In their minds the risk was too great, business was more important.
However, the critical discovery for Bilott was that by the late 1980s, as DuPont became more concerned about the health effects of PFOA waste, it decided it needed to find a landfill for the toxic waste dumped on company property. And along comes the Dry Run Landfill.
What Happened Next
With this information Bilott helped the farmers settle their lawsuit with DuPont, but it wasn’t over for Bilott. He was irritated that DuPont would actively conceal their actions. So, he drafted a 972 paged public brief (which is basically a policy statement) against DuPont and demanded action be taken to regulate PFOA. Of course, DuPont didn’t like this, and requested a gag order (a court order requiring one to refrain from publicly discussing facts of a case) to block Bilott from providing what he had discovered during his previous case with the famers to the government.
Important to note is that under the 1976 Toxic Substances Control Act, the E.P.A. can test chemicals only when it has been provided evidence of harm. Of course, this in essence allows chemical companies to regulate themselves instead of the government. This has led to the E.P.A. only restricting five chemicals, out of tens of thousands on the market, in the last 40 years.
The letter Bilott wrote led, four years later, in 2005, to DuPont reaching a $16.5 million settlement with the E.P.A., which had accused the company of concealing its knowledge of the toxicity of PFOA and its presence in the environment, a violation of the Toxic Substances Control Act.
Bilott never represented a corporate client again; however, he did go on to file a class-action lawsuit against DuPont on behalf of those whose water was tainted by PFOA. Bilott’s major legal hurdle presented itself in the fact that PFOA was not a regulated substance. So the question became how could these people have been poisoned if the government did not see it as a toxin?
Bilott decided to file a class action suit in West Virginia, which recently had become one of the first states to recognize what is referred to as a medical-monitoring claim. In that type of case, a plaintiff needs to prove only that he or she has been exposed to a toxin. If the plaintiff wins, the defendant is then required to pay for the plaintiffs regular medical tests in association with the exposure. Additionally, in these cases, if a plaintiff later becomes ill, he or she can sue retroactively for damages.
Additionally, due to Bilott’s research, the E.P.A. began its own investigation into the toxicity of PFOA. In 2002, the agency released its initial findings, stating that PFOA might pose human health risks not only to those drinking tainted water, but also to the general public. An example of this: those who cooked with Teflon pans.
DuPont ended up settling the class action Bilott brought in 2004 and agreed to install filtration plants in the water districts. Then in December 2011, after seven years, scientists began to release their findings that there was a ‘‘probable link’’ between PFOA and kidney cancer, testicular cancer, thyroid disease, high cholesterol, pre-eclampsia and ulcerative colitis. Now, as of October of 2015, 3,535 plaintiffs have filed personal-injury lawsuits against DuPont.
Yet DuPont continues to refuse to accept responsibility. This fact is maddening to Bilott, and frankly to me as well. As I read about this attorney’s journey to get the injured what they deserved, I couldn’t help to be continually inspired by what I do. Having the ability to fight back against companies that knowingly put people in danger is so crucial to our justice system, and for making changes in the world. If Mr. Bilott had not taken the steps he had, PFOA may still be harming others in massive quantities. I’m glad somebody held DuPont accountable.
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