Sunday, January 17, 2016

Rob Bilott v. DuPont

By Nathaniel Rich

A review of the article in the January 10, 2016 issue of the New York Times Magazine

There have been several recent stories of how corporations are destroying the environment and threatening human life.  One of these stories is about a gas leak in California that forced thousands of people to evacuate an area in the vicinity of Los Angeles.  Another story is how the water supply to Flint, Michigan has been contaminated with lead.  However, anyone who has seen the film Erin Brockovich has an idea of how difficult it is to force corporations to pay for the damage they have done.

Corporate law meets a cattle farmer

In his article Rob Bilott v. DuPont, Nathaniel Rich has given us a look at another story that has a similar theme.  This article appeared in the New York Times Magazine.  However, in reading the article, there is an inescapable conclusion that the New York Times Editorial Board will not be comfortable with.  That is, the problems with the environment, that have clearly been created by corporations, will not be solved within the capitalist system.

Rob Bilott is a corporate lawyer and a partner in the firm Taft Stettinius & Hollister.  The government had passed legislation known as Superfund aimed at cleaning up toxic waste sights.  From what I see from the NY Times article, Bilott’s job was to navigate through government regulations so corporations could receive government money to help pay for the mess they created. 

Then, in 1998 Bilott received a phone call from Wilbur Tennant who lived on his farm in Parkersburg, West Virginia.  The Taft offices are in Cincinnati, Ohio.  Tennant sold 66 acres of land to DuPont because his brother was in poor health and the family needed the money.  DuPont named this sight Dry Run Landfill after the creek that ran onto the Tennant farm.

After this sale, Tennant’s cattle started to become sick and Tennant began to understand that the DuPont landfill was the culprit.  He contacted lawyers, politicians, journalists, doctors, and veterinarians.  None of those contacted wanted to challenge the DuPont Corporation.

Bilott had lived for a time in West Virginia and his grandmother’s family continued to live in the area.  Her family advised Tennant to call Bilott.  Were it not for the fact that Wilbur Tennant knew Bilott’s grandmother, he would probably have hung up on the phone call.  Bilott was used to representing corporations and not cattle farmers from West Virginia.

At the meeting, Tennant showed Bilott a film he made of his cows that documented how they were in a poor state of health.  Tennant dissected one of the cows that died and showed how all the internal organs were discolored.  After seeing this film, Bilott and his law firm decided to take the case.

While Tennant’s film clearly implied that the DuPont landfill made his cows sick, this wasn’t the legal proof required by the so-called justice system in this country.  DuPont countered that, in effect, Tennant was stupid and didn’t know how to care for his cows.  For a while, Bilott wasn’t able to uncover evidence showing DuPont was doing anything illegal.

Then, Bilott discovered a substance called PFOA (perfluorooctanoic acid).  He received a court order requiring DuPont to hand over all information they had on this substance.  DuPont responded by handing over dozens of boxes containing 110,000 pages of files.  It is difficult to imagine what it means to read 110,000 pages to prepare for a trial.

DuPont must have been a little cocky.  This is typical with large corporations.  They feel that they have enormous power.  When being sued by a small cattle farmer in West Virginia, they must have felt they had all the advantages.  This might have been the reason why they were a bit sloppy.

Contained in those 110,000 pages of files was the documentary evidence that DuPont knew PFOA was a hazardous chemical back in 1961.  In fact DuPont knew that there was an excessive amount of PFOA in their Dry Run Landfill.  When Bilott presented DuPont with this evidence, they immediately settled the case with the Tennant family. 

Bilott takes on DuPont 

However, Rob Bilott wasn’t satisfied with this victory.  He then wrote a 972-page letter to the Environmental Protection Agency about DuPont and PFOA.  Then, he launched a class action suit against DuPont. 

Clearly, there was ample evidence to advance this strategy, but there was a problem.  The Taft law firm Bilott worked for would have to support this strategy that might alienate their corporate clients.  DuPont would eventually need to pay out tens of millions of dollars in penalties because of Bilott’s legal actions.  The Taft Law firm would receive a $21 million payment for their role in the case.  However, Taft did loose many of their corporate clients.

Bilott still wasn’t satisfied and represented 3,535 clients who alleged that they suffered injuries or deaths as a result of exposure to PFOA.  Scientists studying PFOA took seven years to conclude that there is a “probable link” between PFOA and kidney cancer, testicular cancer, thyroid disease, high cholesterol, pre-eclampsia and ulcerative colitis.

In the meantime, Bilott suffered from health problems that, in all probability, were related to the enormous stress he experienced.

In the end, the courts allowed Bilott to bring no more than four of his 3,535 cases to trial per year.  DuPont is out of the chemical business and a new corporation manages their chemical operations.  This new corporation has replaced PFOA with another product.  There are mixed reviews as to the safety of this new product.     

In a rational society, if cows were becoming ill, there would be an immediate investigation as to what was the cause.  Certainly when excessive amounts of a hazardous chemical were uncovered, corrective actions would be taken.  Certainly if a substance was found to be toxic, it would not be on the market half a century after this discovery.

Capitalism vs. the environment and human life

However, as we have seen, this isn’t the norm in the capitalist system.  The article Rob Bilott v. DuPont underscores the point that corporations will routinely sacrifice human life and the environment for profit.

In the same issue of the New York Times, there was another article by Clifford Krauss titled China’s Bingeing Cedes to a Commodities Glut.  The article points to the fact that China, as well as many other countries, have more commodities than they can sell.  This is creating economic problems around the world.

The article did not mention the fact that this is not news.  Back in the year 1848 Karl Marx and Frederick Engels published their Communist Manifesto.  The following quotation was taken from that document.

“In these crises, there breaks out an epidemic that, in all earlier epochs, would have seemed an absurdity – the epidemic of overproduction.”

In other words, crisis happens in the capitalist system, not because of failure, but because this is the necessary consequence to capitalist success.  Workers are thrown out of productive jobs and people experience poverty, not because there are insufficient amounts of commodities, but because there are more commodities on the market than people can afford to buy.

Understanding these facts we can state clearly that the resources have been available to eliminate poverty for a long time.  We also have the potential to operate the economy in harmony with nature.  This might not be easy, but it will never happen as long as the capitalist system survives.