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DuPont Won’t Face Most Claims of Toxic Pollution

RICHMOND, Va. (CN) - The 4th Circuit upheld a pair of decisions that threw out most of a lawsuit field against chemical giant DuPont by a community that said the company introduced hazardous C8 into a local water supply.

A three-judge panel of the 4th Circuit backed the rulings made in October 2008 and September 2009 by Chief U.S. District Judge Joseph R. Goodwin.

Goodwin had declined to allow the case to proceed as a class action and, in a second decision, dismissed claims of negligence, nuisance, trespassing and battery.

In her summary of the underlying cases, Circuit Judge Barbara Milano Keenan expresses no doubt that the defendant E.I. du Pont de Nemours (DuPont) discharged perfluorooctanoic acid (also known as C8) into the environment surrounding its plant near Parkersburg, W.Va., and that as a result, measurable quantities of C8 have been detected in the city's water, as well as the plaintiff's homes and blood.

But she concluded that the presence of C8 in plaintiffs' blood - and the potential risk to human health from that condition - did not satisfy the "injury" requirement under West Virginia law. Indeed, she wrote, "the plaintiffs concede that they do not suffer currently from any illness or disease caused by their exposure."

The decision also said that a West Virginia Supreme Court decision allowing cases for "medical monitoring" did not lower the standard of proof required in such toxic chemical lawsuits.

"In such situations, a plaintiff also must produce evidence of a detrimental effect to the plaintiffs' health that actually has occurred or is reasonably certain due to a present harm," Keenan wrote.

Circuit judges Paul V. Niemeyer and Allyson K. Duncan joined Keenan in the decision.

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