Justice Thomas pens dissent over refusal to hear chemical company appeal 

WASHINGTON (CN) — Justice Clarence Thomas expressed concern on Monday that a chemical company that dumped toxins into the Ohio River faced an unfair judgment in a lawsuit from a cancer patient. 

Thomas dissented from the court’s decision not to hear an appeal over how prior judgments against the chemical company DuPont affected future cases against it. 

“Although not without limits, it is ‘part of our deep-rooted historic tradition that everyone should have his own day in court,’” Thomas wrote. “Application of this type of collateral estoppel in an MDL, however, could prevent a defendant from raising a defense in potentially thousands of cases.”

Lawsuits against DuPont were consolidated in multidistrict litigation, or MDL — which is similar to a class action, but instead of grouping individuals into one lawsuit, it groups similar cases. Thomas said using the outcomes of this kind of litigation to decide future suits likely violates due process and warranted the court’s review. Collateral estoppel prevents an issue in a prior case from being relitigated.

“I have doubts about whether the application of nonmutual offensive collateral estoppel based on bellwether trials comports with due process,” the Bush appointee wrote. “Given that MDLs constitute a large part of the federal docket, this issue should be resolved sooner rather than later. We should not sacrifice constitutional protections for the sake of convenience, and certainly at least not without inquiry.” 

The lawsuits against DuPont stem from its use of the “forever chemical” perfluorooctanoic acid — sometimes referred to as C-8 — to make fluoropolymers at a West Virginia manufacturing plant. DuPont released C-8 into the Ohio River and surrounding air until 2013. The carcinogen contaminates groundwater and can build up in the human body, remaining in the blood for years and harming internal organs as it recirculates. 

A class action brought by 80,000 residents against the company in the early 2000s resulted in the Leach agreement, which included an independent science panel of epidemiologists to decide if there was a probable link between C-8 exposure and human diseases. 

Seven years and $24 million later, the panel said there was a probable link between C-8 exposure and six diseases, including testicular and kidney cancer. The findings set off a flurry of litigation from residents with qualifying diseases. DuPont advocated for multidistrict litigation to resolve the suits. 

Certain cases were chosen as bellwether trials — intended to represent a sampling of cases and provide information for a broader population of suits. DuPont lost its first two bellwether trials and settled three. The company then settled the remaining 80 multidistrict litigation cases in 2017. 

The settlements did not stem the litigation against DuPont. One such case was brought by Travis Abbott, who sued the company after developing testicular cancer. Abbott grew up near the company’s plant and was exposed to contaminated water for decades. His cancer resulted in the removal of both of his testicles before he was 18.

A lower court ruled that the results of the bellwether trials should be used to prevent DuPont from challenging the elements of duty and breach in Abbott’s case. The Sixth Circuit denied DuPont relief from the estoppel. 

Thomas said the use of the bellwether trials to decide elements of Abbott's case stretched the understanding of multidistrict litigation’s purpose. 

“It is quite a stretch to use a mechanism designed to handle only pretrial proceedings to instead resolve multiple elements of a claim based on a few nonbinding bellwether trials,” Thomas wrote. “This use of nonmutual offensive collateral estoppel is far afield from any this court has endorsed.”

Justice Brett Kavanagh also dissented from the decision not to hear the case but did not join Thomas’ statement. Justice Samuel Alito did not take part in the decision. 

Follow @KelseyReichmann

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