July 3, 2008

West Virginia Governor Joe Manchin has taken the unusual step of filing an amicus brief with the state Supreme Court of Appeals, asking the court to clarify the ability of DuPont to challenge a jury's award of punitive damages against it. DuPont last week filed an appeal (news release) to the state's top court of last October's awarding of $196.2 million in Harrison County Circuit Court, the result of a class-action lawsuit by residents who charged a nearby zinc smelter was contaminated with heavy metals. (Previous news coverage.)

AP now reports:

Manchin urged the justices to clarify what sort of appellate review is to be afforded DuPont under its constitutional right to due process. His lawyers cited a 2003 U.S. Supreme Court decision to argue that the 14th Amendment guarantees appeals of punitive damages.

The brief essentially questions whether consideration of a written appeal alone is adequate.

"Ensuring that West Virginia courts provide the appropriate level of appellate review to (DuPont), as well as all other parties seeking review of punitive damages awards, is an issue of vital public importance,'' the brief argued.

The plaintiff's lawyers express outrage; Florida lawyer Michael Papantonio declared, "This just further delineates how badly the deck is stacked in West Virginia against people trying to recover when they're taking on DuPont. It's stacked against people who have been wronged by corporate America.''

A recent survey Directorship Magazine and the American Justice Partnership ranked West Virginia as having the 49th best legal climate for business. Manchin, a Democrat, has been making good-faith efforts to reduce the state's legal capriciousness, and the new amicus brief can be seen as more evidence of the attempts.

UPDATE (Sunday): The governor's amicus brief in DuPont v. Perrine is here.