An Ohio federal district court gave E.I. DuPont de Nemours and Co. a partial victory in litigation over ammonium perfluorooctanoate (“C-8”) drinking water contamination in Ohio and West Virginia by granting partial summary judgment on several of Plaintiffs’ product liability and consumer protection claims.  See In re E.I. DuPont de Nemours and Co., No. 2:13-md-2433 (S.D. Ohio July 6, 2015).Plaintiffs —who asserted various product liability, conspiracy, consumer protection, and other tort and statutory claims under Ohio and West Virginia law—allege C-8 discharges from DuPont’s Washington Works plant, where DuPont used C-8 manufactured elsewhere to manufacture Teflon, contaminated their drinking water.  E.I. DuPont, slip op. at 1-2.  Plaintiffs’ actions had been consolidated for pre-trial purposes in a multi-district litigation (“MDL”).

DuPont moved for global summary judgment as to all Plaintiffs in all the MDL cases, and cited to the claims of several specific Plaintiffs as representative of those DuPont faces across the MDL.  The Court, however, limited its rulings only to the Plaintiffs that DuPont specifically identified in its briefing, granting DuPont’s motion in part as to them and noting that its Opinion would be instructive in other cases in the MDL. 

The Court rejected Plaintiffs’ product liability claims because, the Court held, the Plaintiffs at issue did not make any allegations tying their injuries to DuPont’s manufacture of C-8.  DuPont did not manufacture C-8 during the relevant time period; it used C-8 manufactured by others.  Likewise, those Plaintiffs’ state consumer protection law claims failed because the claims hinged on whether DuPont sold, or otherwise induced Plaintiffs to buy, contaminated drinking water.  The court found that “[e]ven a broad interpretation of the term ‘seller’ [could not] transform DuPont into a seller of drinking water.”  Id. at 14. 

The Court also granted DuPont’s motion as to the following claims: (i) conspiracy, because those claims were based on the product liability and consumer protection claims the Court had just dismissed; (ii) trespass on the person, because no such claim is available under Ohio or West Virginia law; (iii) ultrahazardous or abnormally dangerous activity, because DuPont’s activities were neither ultrahazardous nor abnormally dangerous; and  (iv) negligence per se, because the Court found no private right of action under Ohio or West Virginia law, or the federal Resource Conservation and Recovery Act, for damage to groundwater.

The court denied DuPont’s motion on Plaintiffs’ conscious pain and suffering claims, holding that it can be a separate cause of action from wrongful death.  Id. at 21.  The court also found disputed fact issues as to whether DuPont knew that releasing C-8 “would bring about a harmful or offensive conduct” and therefore denied DuPont’s motion on Plaintiffs’ battery claims.  Id. at 25.