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Thursday, December 5, 2019

Better Chemistry Through Regulation

The newly released movie, Dark Waters, provides a dramatic insight into the corporate disregard to human safety and life. The film, to be nationally released this weekend, puts into focus the chemical industry's utter disregard for human life that is compounded by the lack of governmental regulation of an out-of-control business.

The plot is about the efforts of attorney Bob Bilott, “The Lawyer Who Became Dupont’s Worst Nightmare,” and his efforts to seek medical monitoring and economic recovery for Dupont’s chemical pollution to the workers and residents of Parkersburg, West Virginia. The evidence that he revealed in Tennant v. E.I Dupont described a willful corporate conspiracy to concealed known hazards of the chemical pollution. See, IN RE: E.I. DU PONT DE NEMOURS AND COMPANY C-8 PERSONAL INJURY LITIGATION, 939 F. Supp.2d 1374 (2013), MDL No. 2433.

New Jersey workers and residents, coded by E.I.DuPont as “receptors,” are no strangers to the tragic legacy the chemical industry that has left. The wake an epidemic of occupational disease and death has clogged the NJ workers’ compensation system for over half a century beginning in the nineteen-fifties with the asbestos industry. 

The industry’s scheme in modifying the workers’ compensation act to include occupational illness was theoretically an effort to shield itself from civil liability of then emerging silica claims. First came the workers’ compensation cases that inundated the system and were fostered by industry advocated workers’ compensation legislation. That scheme backfired. 

Ingenious lawyer generated new theories of liability to help the struggling victims. When the capped meager workers’ compensation awards were deemed so inadequate as a legal remedy, the never-ending tide of third-party tort claims commenced. Borel v. Fibreboard Paper Products Corporation, 493 F. 2d 1076 - Court of Appeals, 5th Circuit 1973. The companies then engineered themselves in bankruptcy protection and reorganization agreements to greatly reduce and delay payouts. Matter of UNR Industries, Inc., 20 F. 3d 766 - Court of Appeals, 7th Circuit 1994.

In Millison v. E.I. Dupont de Nemours & Company, 115 N.J. 292 (NJ 1989), employees successfully brought civil suits against their employer and against company physicians, stating that the defendants deliberately exposed them to asbestos, even though they had knowledge of adverse health consequences of exposure to this substance. This sentinel case, for an intentional tort, exposed employers and their agents, to third party liability.

Public entities have subsequently also initiated claims for corporate liability. More recently, the Attorney General of New Jersey has instituted litigation against Dupont to hold it accountable for its actions.

Dark Waters targets Perfluorooctanoic Acid (PFOA) that E.I. Dupont used in manufacturing the allegedly indestructible C8 molecule used in Teflon. The exposure to the manufacturing process made the workers fatally ill. It didn’t stop there either. The waste of the process was dumped into the naturally occurring water system and into company landfills thereby exposing the community at large. See, The Poisoned Legacy, EWG, April 2015.

The film points out that 90% of the world’s pollution has been figuratively injected with the carcinogenic C8 molecule and it's predictable harmful health consequences. Professor David Michaels, former Assistant Secretary of Labor, wrote this week, “A new movie, “Dark Waters,” shines a bright light on a group of dangerous chemicals that are likely in your bloodstream right now. It tells the true story of a polluter that manipulated research and kept evidence hidden from the public – and shows just how crucial it is that scientific evidence be produced by researchers free of conflicts of interest.” “What ‘Dark Waters’ Reveals About Corporate Science,” Bloomberg Opinion, Nov. 26, 2019.

The workers’ compensation system has historically provided the genesis of disclosure of the chemical industry’s conspiracy. The system remains an inadequate safety net for those unfortunate sick workers and their families, who seek a basic, though limited and difficult remedy, for the failure to regulate the Industry in the first place. The real challenge going forward, as Dr. Michael’s points out, is that "better living through chemistry" needs much more regulation.

Read related posts:
3M agrees to pay $55 million to Wolverine Worldwide for PFAS settlement BBC 2/21/20
Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Updated: 2/22/2020