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Perrine v. E.I. du Pont de Nemours & Co.

Citation: 40 ELR 20097
No. Nos. 3433 et al., (W. Va., 03/26/2010)

The West Virginia Supreme Court affirmed in part and reversed in part a series of jury verdicts, orders and rulings in a class action where the owner of a zinc smelter facility was found liable to class members for approximately $382 million in damages related to off-site arsenic, cadmium, and lead contamination that emanated from the facility. As a preliminary matter, the court held that the lower court erred in finding that the members’ claims were not barred by the statute of limitations (SOL). There was conflicting evidence with respect to when the members possessed the requisite knowledge to trigger the running of the SOL. Accordingly, the issue should have been determined by the jury. The court therefore conditionally affirmed the judgment and remanded the case for a jury trial solely on the SOL issue. In regards to punitive damages, the court held that punitive damages may not be awarded on a cause of action for medical monitoring and, on this basis, the lower court erred in allowing the jury to award punitive damages for these claims. The court therefore reduced the punitive damages award by 40%. In addition, the court held that the facility owner was entitled to a reduction of $20 million in punitive damages, which is the amount that it already spent to remediate the smelter site. The court therefore reversed and remanded the award of punitive damages with instructions to the lower court to give the members thirty days to decide whether they will accept remittitur in the amount of $20 million or submit to a new trial on punitive damages only.

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