Justice Thomas Dissents in Lawsuit Against Chemical Giant DuPont

The Supreme Court justice said the decision not to review a liability verdict could endanger defendants’ constitutional rights.
Justice Thomas Dissents in Lawsuit Against Chemical Giant DuPont
Supreme Court Justice Clarence Thomas speaks during an event in Washington on Oct. 21, 2021. (Drew Angerer/Getty Images)
Matthew Vadum

Justice Clarence Thomas dissented from the Supreme Court’s decision this week not to review a $40 million verdict an Ohio man, Travis Abbott, won against DuPont.

Mr Abbott said toxic “forever chemicals” the company released into the water supply gave him cancer.

Justice Thomas wrote in a dissenting opinion on Nov. 20 that not taking the case could have repercussions “in potentially thousands of cases” and could interfere with the defendants’ Sixth Amendment right to a jury trial.

The Court denied the petition for certiorari, or review, in E.I. du Pont de Nemours and Co. v. Abbott (court file 23-13), in an unsigned order.

It didn’t explain the decision.

At least four of the nine justices must vote for a petition for it to move forward to the oral argument stage.

The DuPont company, also known as EIDP, is a large manufacturer of chemicals based in Wilmington, Delaware.

Justice Brett Kavanaugh did not join Justice Thomas’s dissent but indicated he would have granted the petition.

Justice Samuel Alito, who has disclosed that he owns DuPont stock, did not participate in the decision but did not explain why he recused himself.

Mr. Abbott said that a DuPont plant in West Virginia discharged cancer-causing perfluorooctanoic acid (PFOA) into the Ohio River.

PFOA and related chemicals have been called “forever chemicals” because the human body and the environment can’t easily break them down.

DuPont and other corporations have been criticized for using chemicals in the making of products such as Teflon. DuPont claimed its defense in federal court had been hampered during Mr. Abbott’s civil trial in 2020.

The company said it had been improperly prevented from disputing findings in prior lawsuits that it had negligently exposed people to PFOA.

Specifically, the company said it could not contest “key elements of liability” in the Abbott lawsuit, which it called “profoundly wrong.”

DuPont said that a legal doctrine known as “collateral estoppel” prevented it from mounting an adequate defense. Collateral estoppel prevents a party in a lawsuit from raising an issue that was previously decided in litigation.

The unfavorable ruling of a divided U.S. Court of Appeals for the 6th Circuit in the case “eviscerates a critical tool for resolving mass torts cases and violates basic principles of due process to boot,” the company said in its petition filed June 30 with the Supreme Court.

DuPont has been a party to multi-district litigation (MDL) for more than 10 years “in which thousands of plaintiffs have claimed that they were injured by past authorized discharges of a chemical … from one of DuPont’s plants.”

The MDL process, which sometimes resembles class action litigation, consolidates complex cases so they are managed by one court.

The problem is that several lawsuits that are “too diverse and individualized for class [action] treatment … were aggregated in an MDL for pre-trial purposes.”

“To assess the strength of plaintiffs’ claims and enhance the prospects of a global settlement, the district court followed the well-trod path of allowing the parties to choose a handful of bellwether cases to try first.

"In approving the parties’ selection, the district court did not purport to find those bellwethers representative of the rest of the MDL cases.”

But the company said: “The parties and the court agreed from day one that the bellwether results would not be binding in future trials and were instead designed to inform the parties of the strengths of various claims and defenses and thereby to encourage a global settlement.”

Despite this, after verdicts came in from two bellwether trials, the district court ruled that the company could not challenge “the key elements of duty, breach, and foreseeability in this case and in any of the thousands of other potential suits in the MDL,” according to the petition.

In his dissent, Justice Thomas wrote that the “expansive” use of collateral estoppel “in the MDL context raises serious due process concerns” because it is “part of our deep-rooted historic tradition that everyone should have his own day in court.”

Allowing collateral estoppel to be used this way “could prevent a defendant from raising a defense in potentially thousands of cases. It would make no difference if other MDL plaintiffs have material differences that would prevent them from making their required showing on that element—once nonmutual offensive collateral estoppel has been applied, a defendant’s hands are tied.”

“In fact, a defendant cannot raise a defense even if there was no notice that bellwether trials would dictate the results of every MDL case,” the justice wrote.

“Collateral estoppel also must contend with a defendant’s right to a jury trial,” he added.

The Epoch Times reached out to EIDP attorney Paul Clement of Clement and Murphy in Alexandria, Virginia, and Mr. Abbott’s attorney, Matthew Wessler of Gupta Wessler in Washington, but had not received a comment from either as of press time.