Case: 2:13-md-02433-EAS-EPD Doc #: 4158 Filed: 08/10/15 Page: 1 of 11 PAGEID #: 79093

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
IN RE: E. I. DU PONT DE NEMOURS
COMPANY C8 PERSONAL INJURY
LITIGATION

CASE NO. 2-13-MD-2433
JUDGE EDMUND A. SARGUS, JR.
MAGISTRATE JUDGE ELIZABETH P.
DEAVERS

This document relates to:

Carla Marie Bartlett v. E.I. du Pont de Nemours and
Company, Case No. 2:13-cv-170.

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DUPONT’S MOTION IN LIMINE
NO. 15 SEEKING TO EXCLUDE STATEMENTS THAT CATTLE DISEASE OR
CATTLE DEATHS HAVE BEEN CAUSED BY C8
(DuPont’s Motion in Limine No. 15)

Plaintiff respectfully requests that this Court deny defendant E. I. du Pont de Nemours and
Company’s (“DuPont”) motion in limine number 15 seeking to exclude evidence regarding
whether C8 caused disease or death in the Tennant cattle herd, because the motion seeks to
exclude relevant evidence pertaining to the reasonableness of DuPont’s conduct as to C8.
DuPont’s conduct in response to the allegations that cattle were becoming sick and dying due to
contamination of the Dry Run Creek is relevant (1) to whether DuPont acted reasonably with
regard to its investigation of C8 toxicity and pollution and in its communications with people
whose drinking water was contaminated by C8; and (2) to counter DuPont’s claim that it
“exhibited a proactive concern”1 for its use of C8 and openly informed US EPA of its knowledge
on C8. Plaintiffs seek to introduce limited evidence regarding the cattle claims to prove DuPont’s
tortious activities regarding C8.
1

Through both its expert witnesses and through arguments made in its briefing, DuPont alleges that it was proactive
with regard to the safety of C8. (See, e.g., Expert Report of Robert W. Rickard [ECF No. 2807-4] at 5, 11 and 26;
Expert Report of Thomas C. Voltaggio [ECF No. 2807-7]; DuPont’s Mot. for Partial Summ. J. on Punitive Damages
in the Bartlett and Wolf Cases [ECF No. 2825] at 1; Evid. Mots. Order No. 2 [ECF No. 4129] at 2, 10-12.)

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I.

BACKGROUND

Years prior to the Tennant cattle becoming sick, DuPont employees internally identified
that C8 was toxic to animals2 and that C8 had contaminated public drinking water. Yet, DuPont
kept regulators and the public in the dark as to the presence of C8 in the drinking water
surrounding Washington Works Plant. It wasn’t until Mr. Tennant’s cattle started dying in the
mid-1990’s and the Tennants started connecting those deaths to DuPont’s wastes that DuPont’s C8
pollution was finally exposed. DuPont’s response to the Tennant cattle crisis is relevant evidence
of DuPont’s failure to act in accordance with applicable standards of care and is demonstrative of
DuPont’s continuous attempts to keep regulators, scientists, and the public in the dark with regard
to C8’s existence and toxicity.
In the early 1980s, DuPont purchased a portion of farm land from a local cattle rancher
Earl Tennant and his family (the “Tennants”). The Tennants’ farm was located in Wood County,
West Virginia, and ran adjacent to Dry Run Creek. In exchange for sale of the land, DuPont
promised the Tennants that there would never be a disposal of hazardous materials on the land,
which DuPont sought to use as a landfill (the “Dry Run Landfill”). At the time, DuPont knew that
the Tennants allowed their cattle to graze along and also drink from the Dry Run Creek. Despite
DuPont’s promise to the Tennants that it would not dispose hazardous materials at Dry Run
Landfill, DuPont intentionally dumped 7100 tons of C8 contaminated sludge and additional C8
contaminated bio-cake filters into the unlined landfill, beginning in the 1980s. (Aff. of Michael
London in Supp. (being filed herewith) (“London Aff.”) Ex. A (Sykes Dep. Ex. 13 at EID091596)
and, in 1991, DuPont held an internal “C8 meeting” where DuPont employees discussed “[w]hat
2

In 1987, Dr. Gregory Sykes, DuPont’s litigation veterinarian expert and member of the 1999 Cattle Team, was
asked by his superiors at DuPont to review a two-year carcinogenicity study conducted by 3M on rats given varying
doses of C8. (See Dep. Tr. of Greg P. Sykes [ECF No. 3082-1] (“Sykes Dep.”) 48:17-50:18.) Dr. Sykes concluded
that the rats given the highest dose of C8 had a statistically significant increase in the number of testicular tumors
compared to the other rats in the study. (Id. at 61:10-15; Sykes Dep. Ex. 2, Two-Year Carcinogenicity Study of
Fluorochemical FC-143 in Rats, (Oct. 29, 1987) Bates EID122819-122824, at 122821[ECF No. 4107-5]).

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would be the effect of cows drinking water from the exit stream at Dry Run Landfill (100 ppb)?”
(London Aff. Ex. B (Sykes Depo. Ex. 14 at EID556309)).
At the same time that DuPont was knowingly dumping C8 into the unlined landfill, Mr.
Tennant and other citizens in the area reached out to the US EPA due to their concerns that
something harmful was being discharged from the Dry Run Landfill into the Dry Run Creek. As
opposed to being forthright with EPA and the public that it was dumping large amounts of C8 into
the unlined landfill, DuPont Internal Affairs prepared a standby statement that, if used, would have
misleadingly told the public that only “nonhazardous” materials were deposited at the Dry Run
Landfill.3
Finally, in 1999, and in response to EPA’s suggestion that there be further investigation
into what was happening to the Tennant cattle and wildlife living around Dry Run Landfill,
DuPont attempted to deflect any independent US EPA investigation by suggesting that a separate
team of veterinarians, including those appointed by DuPont (the “Cattle Team”) investigate the
health of Mr. Tennant’s herd and surrounding wildlife. By the time the Cattle Team actually
conducted its investigation, Mr. Tennant reported that he had lost a total of 176 cows and 200
calves, and that the remaining herd consisted only of 41 animals. (See Expert Report of Greg P.
Sykes [ECF No. 2807-6] (“Sykes Report”) and at attached “Tennant Herd Health Investigation
Cattle Team Report” (“Cattle Team Report”), Appx. E. (p. 107).)
The Cattle Team was assembled in early 1999 by the EPA and DuPont, with EPA selecting
three veterinarians and DuPont selecting three veterinarians. Of the three veterinarians selected by
DuPont, one was Dr. Sykes, a former DuPont scientist who had over a decade earlier analyzed
C8’s carcinogenicity in rodents, (Sykes Dep. 48:17-21), and another DuPont selectee was a local

3

London Aff. Ex. C (Email to D. Jackson, Subject: Qs/As #6 Dry Run/07-Apr-1999, (July 21, 1999) [forwarding a
document from July 24, 1997], Bates EID271743-9).

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veterinarian, Dr. Lisa Heller, who already had testified on behalf of DuPont at public hearings
regarding Dry Run Landfill, (Interoffice Memorandum (Dec. 3, 1998), EID0948897 [ECF No.
4107-4]). Dr. Sykes is the only member of the Cattle Team to come forward in this litigation with
an opinion regarding the Cattle Team’s “investigation” of whether C8 was causing health
problems in the cattle herd.4
The 120-page Cattle Team Report does not mention C8 once. This is unsurprising, given
the fact that the only information provided to the Cattle Team regarding C8 according to Dr. Sykes
was a single page provided by DuPont that listed several chemicals characterized as “possibly”
being present in “de minimus” amounts at the Dry Run Landfill. (See Sykes Dep. at 181:2-10;
London Aff. Ex. D (Sykes Dep. Ex. 8 (EID150694-150696, 150696)). This characterization of
C8’s presence at the Dry Run Landfill was a blatant falsehood and is evidence of DuPont’s
feigned efforts to mitigate the problem with C8 pollution.
II.

LEGAL ARGUMENT

Courts are “generally reluctant to grant broad exclusions of evidence in limine, because ‘a
court is almost always better situated during the actual trial to assess the value and utility of
evidence.’” Musgrave v. Breg, Inc., No. 2:09-CV-01029, 2011 WL 4502032, at *2 (S.D. Ohio
Sept 28, 2011) (citation omitted). To obtain the exclusion of evidence through such a motion, a
party must prove that the evidence is clearly inadmissible on all potential grounds and “‘[u]nless
evidence meets this high standard, evidentiary rulings should be deferred until trial so that
questions of foundation, relevancy and potential prejudice may be resolved in proper context.’”
Id., 2011 WL 4502032, at *2 (quoting Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846
(N.D. Ohio 2004)).
4

Plaintiff has separately moved to preclude DuPont from attempting to introduce any opinions or testimony of the
other Cattle Team members who were not properly disclosed. (See Pl. Mot. in Limine No. 13 to Exclude Test. of Def.
Expert Dr. Greg Sykes Relaying Hearsay Statements Made By Non-Testifying Persons [ECF No. 4107] (incorporated
herein as if restated in full).)

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Contrary to DuPont’s briefing, there is in fact no “uniform rule barring” all evidence of a
defendant’s allegedly “post-injury” conduct. Dykes v. Raymark Industries, Inc., 801 F.2d 810,
818 (6th Cir. 1986) (“It does not logically follow simply because the proffered evidence seeks to
establish some act occurring after the injury that the evidence cannot make the fact of the preinjury conduct more probable than not.”)5
Federal courts have denied motions in limine seeking to preclude evidence of a defendant’s
allegedly “post-injury” conduct where such evidence: (1) demonstrates an attitude on the part of
the defendant that was “consistent” with the culpable conduct that plaintiff claims existed prior to
the injury, id. at 817-18; (2) is relevant to the plaintiff’s state law tort claims, Musgrave, 2011 WL
2502032, at *4; or (3) is properly used for impeachment purposes, id. at *5.
Here, Mrs. Bartlett does not intend to elicit testimony from any of its experts that C8
actually caused death or harm to Mr. Tennant’s cattle. However, Plaintiff should be entitled to
present relevant evidence regarding the cattle and the Cattle Team’s investigation: (1) to
demonstrate that DuPont’s response to claims of harm to the cattle and public concerns regarding
the Dry Run Landfill through the Cattle Team investigation were unreasonable, were not designed
to fully inform the public and scientists about the toxicity of C8 or its presence in the environment,
and were calculated to keep the issue of C8’s contamination in the water supply hidden; and (2) to
rebut DuPont’s claim that it has at all times acted “proactively” with regard to C8 and the public’s
safety, including during its communications with US EPA . Accordingly, Mrs. Bartlett may seek
to offer evidence such as the following:


As early as 1991, DuPont was dumping C8 at the unlined Dry Run Landfill and
internally DuPont employees were discussing whether the amount of C8 might
impact cattle drinking from Dry Run Creek.

5

See also Pl. Mem. in Opp. to DuPont’s Mot. in Limine to Exclude Test. And Other Evid. Regarding Post-1997
DuPont Conduct and Knowledge (being filed contemporaneously herewith and incorporated herein as if restated in
full.)

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

Claims arose in the late 1990s that the Tennant cattle had become sick and were
dying, raising the attention of US EPA and prompting DuPont to put together a
Cattle Team to “investigate” the problem (and deflect attention away from C8).



The Cattle Team (including US EPA appointees) was provided no or misleading
information regarding C8’s presence at the Dry Run Landfill.



DuPont used the Cattle Team’s Report to mislead and delay the discovery by
concerned citizens and government regulators of DuPont’s C8 contamination.



As a direct result of the Tennant claims and lawsuit, DuPont’s use of C8 was
finally exposed and the public first became aware that DuPont had contaminated
local drinking water supplies with C8.

A. Evidence Post-Dating Mrs. Bartlett’s Cancer Diagnosis Relating to DuPont’s
Response to the Cattle Claims is Relevant.6
Evidence relating to DuPont’s conduct as to the Tennant cattle and Cattle Team
investigation is relevant to showing a pattern of DuPont attempting to keep the public, regulators,
and scientists in the dark regarding the existence of C8, the toxicity of C8 and the vast amounts of
C8 that DuPont had dumped into the environment causing contamination of area drinking water
supplies. The weak efforts of the Cattle Team to adequately investigate whether C8 was in fact
harming the Tennant cattle are consistent with the non-proactive approach DuPont has maintained
towards C8 and the risk it poses to human health throughout the more than 60 years that DuPont
has profited from C8.
In Dykes, the Sixth Circuit found that a federal district court did not commit error by
denying a defendant asbestos manufacturer’s motion in limine to exclude various purportedly
“post-exposure” documents, where such evidence was being proffered to bolster plaintiff’s claim
that the defendant had “suppressed information about asbestos dangers.” Dykes, 801 F.2d at 818.
The defendant had argued that documents created prior to the plaintiff’s exposure were not
relevant to the defendant’s knowledge of asbestos dangers and, therefore, should be excluded, and

6

See id.

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the district court denied the motion finding that the documents could be admitted for punitive
damages to demonstrate that the defendant acted willfully or recklessly. Id. at 817-18.
On appeal, the Sixth Circuit rejected the defendant’s argument that there was an absolute
rule barring “post-injury” evidence and found that such evidence can be admitted as “relevant to
defendant’s culpability.” Id. at 818. The Sixth Circuit found that the district court had properly
determined that the documents were relevant, because they “circumstantially demonstrated that
defendant’s attitude as reflected therein was consistent with its position of nonactivity during the
period of plaintiffs’ exposure.” Id. (quoting Dykes v. Natl. Gypsum Co., No 3-83-382, Slip. Op. at
*18 (E.D. Tenn. May 29, 1984) (emphasis added by the Sixth Circuit). Similarly, the limited
evidence that Mrs. Bartlett seeks to admit here regarding DuPont’s reaction to the Tennant cattle
claims and interactions with the Cattle Team is demonstrative of and “consistent with” DuPont’s
“nonactivity” as to the potential dangers of C8 and the great exposure risk that DuPont imposed
upon the community for decades.
Additionally, in Musgrave, a federal district court also denied defendant’s motion in limine
seeking to exclude internal “post-injury” documents. The court found that such evidence could be
relevant to the plaintiff’s claims under the Ohio Product Liability Act and, therefore, denied the
defendant’s motion in limine, finding that:
“[E]vidence created post-surgery may be relevant to show what [the
defendant] should have known at the time of manufacture and
distribution, particularly if this evidence indicates that there was
information available or information that was actually in possession
of [the defendant] during the time of manufacture and/or distribution
of the pain pump at issue. Consequently, the Court cannot say that
all of the evidence created post-surgery is irrelevant.”
Musgrave, 2011 WL 2502032, at *4.
DuPont’s response with regard to the Tennant cattle claims and DuPont’s interactions with
the Cattle Team that DuPont was itself responsible for creating is demonstrative of a continued
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pattern of negligent, willful, intentional, and reckless conduct with regard to C8 and, therefore, is
relevant to Mrs. Bartlett’s claims in this case. (See Evid. Mots. Order No. 2 [ECF No. 4129].)
Moreover, DuPont has proffered Dr. Sykes as a paid expert for DuPont in this case in the
hopes that he will be allowed to testify at trial that the Cattle Team “thoroughly investigated the
claim” that C8 or other Dry Run Landfill chemicals were causing health problems in the Tennant
herd, and that the Cattle Team found those claims to be unfounded. (Sykes Report at 2). Dr.
Sykes’ testimony reveals a troubling pattern by which the Cattle Team, led by DuPont Steering
Committee member and employee Rudy Valentine, did nothing to educate the US EPA members
of the team regarding relevant facts as to the ability of C8 and other chemicals at the Dry Run
Landfill to cause or to contribute to the cattle’s health problems, even though it was well-known to
DuPont at the time that C8 was a primary contaminant of concern at that landfill. (London Aff.
Ex. A at EID091596; id. Ex. B). This evidence that DuPont seeks to exclude demonstrates that
DuPont was neither reasonable in its response to the cattle crises nor forthright with the Cattle
Team scientists regarding the presence of C8 at the landfill. The fact that DuPont attempted to
keep the Cattle Team scientists in the dark as to the nature of C8 and to the amount of C8 at the
Dry Run Landfill demonstrates DuPont’s culpable conduct and its attempt to keep C8 hidden from
investigators and the public. As such, it is directly relevant to Mrs. Bartlett’s tort claims and to
rebutting defense expert assertions that DuPont was at all times “proactive” with regard to C8.
Dr. Sykes’ claim that the Cattle Team “thoroughly investigated” whether C8 caused the
cattle’s problems is refuted by his own testimony that the Cattle Team had no information
regarding C8, except a list of chemicals on which “ammonium perfluorooctonate” (C8) was listed
as “possibly” being present at the Dry Run Landfill. (Sykes Dep. 181:2-10; London Aff. Ex. D at
150696). Dr. Sykes testified that this was the only information regarding C8 that was circulated to
the Cattle Team. The Cattle Team never reviewed DuPont’s toxicity profile on C8 and neither he
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nor the other members of the Cattle Team were provided any information as to the massive
quantity of C8 that DuPont had deposited at the landfill:
Q.

Was there any information in the materials circulated to the cattle team, other than
this three-page document, regarding C8?

A.

No.

Q.

Okay. So, then, just to be specific, there was no information provided to the cattle
team as to how much C8 might have been at the landfill?

A.

That's correct.

(Sykes Dep. 181:2-10). In reality, and as well-known to DuPont at the time, over 7100 tons of
C8-contaminated sludge had been deposited in the Dry Run Landfill. (London Aff. Ex. A at
EID091596; Sykes Dep. 244:3-248:6.)
Dr. Sykes’ testimony consistently reveals that DuPont made no efforts other than the tepid
and misleading list of “possible” chemicals to inform the Cattle Team about C8’s presence at the
landfill. Dr. Sykes himself was given no information revealing the fact that DuPont had been
concerned with the levels of C8 in the Dry Run Creek since as early as 1991. For example, Dr.
Sykes was unaware that DuPont had held “C8 Meeting[s]” in 1991 to discuss questions such as:
“what would be the effect of cows drinking water from the exit stream from the Dry Run Landfill
100 parts per billion. Accumulation in body-subsequent human consumption of meat-milk?
Other animals drinking this water.” (London Aff. Ex. B at EID556309; Sykes Dep. 260:14-23
263:1-19.) When confronted with this document 15 years later, after being retained to testify for
DuPont in this case, Dr. Sykes now claimed that such information would not have been important
to the Cattle Team’s investigation. (Id. 264: 10-13.)
B. Plaintiff is Entitled to Present the Evidence at Issue to Address DuPont’s Defense
that it acted Proactively at All Times With Regard to the Safety of C8.
DuPont intends to offer evidence at trial through its experts that DuPont acted
“proactively” at all times with regard to C8. Mrs. Bartlett is, therefore, allowed to present
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evidence addressing and relating to this defense. (Evid. Mots. Order No. 2 [ECF No. 4129] at 1012.) Evidence regarding DuPont’s response to the Tennant cattle crises and the evidence that
DuPont misled the Cattle Team, regulators, and the community regarding the presence and impact
of C8 directly relates to DuPont’s defense that it was proactive with regard to C8. Moreover,
federal courts regularly permit purportedly “post-injury” evidence where such evidence is relevant
for “impeachment purposes”. Musgrave, 2011 WL 2502032, at *5 (denying defendant pain pump
manufacturer’s motion in limine to exclude a post-injury statement by the Food and Drug
Administration on basis that it was relevant for “impeachment purposes”). Here too, Mrs. Bartlett
should be allowed to introduce evidence of DuPont’s conduct after Mrs. Bartlett’s cancer
diagnosis date for the purpose of impeaching and addressing DuPont expert opinion and other
evidence proffered in support of DuPont’s defense that it was at all times proactive with regard to
the risk that C8 posed to the community.
III.

CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court deny DuPont’s
motion in limine No. 15 in its entirety.

Respectfully submitted,

/s/ Michael A. London
Michael A. London
Douglas & London, PC
59 Maiden Lane, 6th Floor
New York, NY 10038
Telephone: 212-566-7500
Fax: 212-566-7501
Email: mlondon@douglasandlondon.com

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Robert A. Bilott
Taft Stettinius & Hollister LLP
425 Walnut Street, Suite 1800
Cincinnati, Ohio 45202-3957
Telephone: 513-381-2838
Fax: 513-381-0205
Email: Bilott@taftlaw.com
Jon C. Conlin
Cory Watson, PC
2131 Magnolia Ave., Suite 200
Birmingham, AL 35205
Telephone: 205-328-2200
Fax: 205-324-7896
Email: jconlin@corywatson.com
Plaintiffs’ Steering Committee Co-Lead Counsel

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was electronically filed with
this Court’s CM/ECF on this 10th day of August, 2015 and was thus served electronically upon all
counsel of record.
/s/ Michael A. London

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