
The Lawyer Who Became DuPont’s Worst Nightmare - igonvalue
http://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html
======
ErikVandeWater
The title of this piece does not reflect its contents. So far, according to
the article, DuPont has been forced to pay less than $100 million in damages
for a chemical that resulted in $1 billion plus annual profits. Personal
injury suits are ongoing, but "At the rate of four trials a year, DuPont would
continue to fight PFOA cases until the year 2890."

The lawyer sounds incredibly and understandably frustrated with the situation:

"The thought that DuPont could get away with this for this long," Bilott says,
his tone landing halfway between wonder and rage, "that they could keep making
a profit off it, then get the agreement of the governmental agencies to slowly
phase it out, only to replace it with an alternative with unknown human
effects — we told the agencies about this in 2001, and they’ve essentially
done nothing."

A better title would be: "Through effective legal strategy, DuPont delays
outlays for pollution effects"

~~~
stefs
that wouldn't have been a catchy enough title to make me read the story.

------
dexwiz
I did an undergraduate in Chemistry, and I occasionally get the question of,
"Is X bad for me," or "Will Y give me cancer?" My response is always that our
modern world is bad for you. There are millions (maybe billions) of chemicals
produced by thousands of companies. Most are probably harmless. But it only
takes one or two being really bad for you to get sick. PFOA is one more to add
to this list of shit that's not good for you. Most people are lucky enough to
not be Wilbur Tennant and live right next to a chemical dump that poisons
their water. But most people do get low doses of chemicals like PFOA. And they
probably get low doses of another thousand things that are just as deadly, but
unknown. We live in a poisoned world, but its not poisoned enough to kill the
people that make the decisions, yet.

~~~
apsec112
"My response is always that our modern world is bad for you."

Is there any other place or time that would be less bad? Going back through
history:

\- In the 20th century, factories were far dirtier than today; the gasoline
was still full of lead; London had its infamous killer smogs
([https://en.wikipedia.org/wiki/Great_Smog);](https://en.wikipedia.org/wiki/Great_Smog\);)
rivers routinely caught on fire from industrial waste
([https://en.wikipedia.org/wiki/Cuyahoga_River);](https://en.wikipedia.org/wiki/Cuyahoga_River\);)
etc.

\- In the 19th century, all kinds of common products (especially medicines)
were hideously toxic. Mercury was used to make hats, so people became "mad as
a hatter" from heavy metal poisoning. Famous artists painted with arsenic
paint
([https://en.wikipedia.org/wiki/Paris_green](https://en.wikipedia.org/wiki/Paris_green)).
Abraham Lincoln's doctors gave him mercury poisoning
([http://www3.uah.es/farmamol/The%20Pharmaceutical%20Century/C...](http://www3.uah.es/farmamol/The%20Pharmaceutical%20Century/Ch1.html)).
There's a history book called "The Arsenic Century: How Victorian Britain Was
Poisoned at Home, Work, & Play" ([http://www.amazon.com/The-Arsenic-Century-
Victorian-Poisoned...](http://www.amazon.com/The-Arsenic-Century-Victorian-
Poisoned/dp/0199605998)).

\- In the 16th century, the popularity of pale skin lead women to use lead-
based pale makeup, with accompanying lead poisoning and skin damage
([http://www.elizabethancostume.net/makeup.html](http://www.elizabethancostume.net/makeup.html)).

\- In Roman times, lead was ubiquitous. Of course, lead was used for the
plumbing which carried the water supply. But just in case that wasn't enough,
they would boil juice in lead pots to create "sugar of lead", which was used
as a sweetener in cooking
([https://en.wikipedia.org/wiki/Lead(II)_acetate](https://en.wikipedia.org/wiki/Lead\(II\)_acetate)).

\- Even in hunter-gatherer times, all kinds of naturally occurring substances
would have been toxic. Poisonous plants were ubiquitous, as were poisonous
substances in the water (drunk straight from the river or pond, remember).
"Clostridia bacteria, for example, live in the soil but infect humans in a
variety of nasty ways. These germs will grow on food, leaving the toxins that
cause botulism".

~~~
jacobolus
You missed by far the biggest one: wood cook fires / hearths (or animal dung,
or whatever).

The vast majority of all people who ever lived (including a great number still
today across the developing world) dealt with much worse air pollution, in the
form of wood smoke, than the worst cigarette cloud you’ll ever find in a bar,
or the worst smog you’ll ever find in a coal-powered city.

------
dmckeon
_PFOA was only one of more than 60,000 synthetic chemicals that companies
produced and released into the world without regulatory oversight. ... Under
the 1976 Toxic Substances Control Act, the E.P.A. can test chemicals only when
it has been provided evidence of harm. This arrangement, which largely allows
chemical companies to regulate themselves, is the reason that the E.P.A. has
restricted only five chemicals, out of tens of thousands on the market, in the
last 40 years._

Staggering. This is regulatory theater that makes the TSA version look like a
pre-school play.

~~~
technotony
My company is regulated by the EPA, so I was surprised by this statement and
sent it to my lawyer to ask why the EPA often asks for tests for my products
which are also regulated by TSCA but for which they have no evidence of harm.
Turns out it's highly misleading as this statement only applies to chemicals
in use before the EPA was setup in the 1970's. Those and naturally occurring
chemicals were automatically added to the TSCA inventory (about 70,000 on the
list). New chemicals do have to get approved for use. Clearly duponts cover up
is egregious, but another way to read the fact that only five have been
restricted is that many of the others are safe for their intended use. I can
testify that EPA testing is pretty thorough, at least for small companies like
mine.

~~~
meagain20000
I hate to be that cynic but it sounds like you need better conections like
Dupont. You are probably not contributing political donations to the right
people...etc. etc.

~~~
technotony
Sadly I don't think your cynicism is misplaced. I'm just back from a trip to
Washington where the advice we got was essentially setup an industry group and
hire a lobbyist. Am curious to see if it makes things easier.

~~~
rayiner
Setting up and industry group and hiring a lobbyist is not at all the same
thing as making wink wink campaign donations.

Having done work in the environmental space, I do think the cynicism is
misplaced. EPA isn't constrained because of well placed campaign donations.
It's constrained because a huge part of the country believes that God
literally gave us the earth to use up and considers any environmental
regulation to be unamerican. Not to mention that every attempt at regulation
is met with the same response: "it'll kill jobs."

Do big chemical companies have lots of lobbyists? Sure. Their job is to point
out to Congresscritters every bit of uncertainty in the science (of which
there is a lot), to reinforce what they already believed. Those companies
don't need to make big donations to get their way--they just have to tell
Congresspeople how many good blue collar factory jobs they create in their
district. It's the environmental groups that really benefit from lobbying.

------
mirimir
Rob Bilott is indeed a hero.

But damn, "PFOA was only one of more than 60,000 synthetic chemicals that
companies produced and released into the world without regulatory oversight".

Consider breast cancer. One of the risk factors is nulliparity (having borne
no children). There's also an inverse association between breast cancer risk
and parity (number of children). One of the mechanisms for that, it seems, is
that lipophilic organic pollutants are mobilized from womens' fat during
pregnancy and lactation. People are born with ~20% of typical lifetime doses
of such pollutants.

Human breast milk cannot be sold commercially. One reason is that it's too
contaminated with organic pollutants. Life is funny.

------
guardiangod
Out of the article, I was most impressed by the tenacity of the lawyer in
question, Bilott, and his law firm, Taft, for their willingness to keep him as
a partner.

Thank you. A few good men, indeed.

------
xlayn
It makes me really sad how big corporations use the power they have to cover,
fight and (sometimes) get away with practices that translate into money for
them at the expense of everything else. We have been told since always how we
humans will once destroy earth, how one day clean air will be sold as a
luxury. Now we can see it happening everywhere, I remember have read that the
most contamination California gets it is from China. China effectively
destroyed the environment for making money. And then you are remembered how
this money doesn't go to the everyday Joe, but to the 1%, who doesn't pay
taxes (which are by definition a way of wealth redistribution) therefore
destroying preventing Joe again for getting a better life, who also has a
worst life because his environment has been destroyed.

~~~
noonespecial
All true. Just don't forget that Joe is complicit each time he chooses that
"roll-back" at Walmart and saves a buck over the more responsibly produced
item(1).

(1) Of course you could argue that Joe can't tell the difference and is too
bad off financially for it to matter anyway.

~~~
iheartmemcache
We're just as much to blame every time we whip out or iPhone --
([http://www.cnet.com/news/riots-suicides-and-other-issues-
in-...](http://www.cnet.com/news/riots-suicides-and-other-issues-in-foxconns-
iphone-factories/)) not only involves working conditions so bad that people
are driven to literally jump off the roof of the building so frequently that
managers placed a net down, but the production of semi-conductors involves
tons of rare-earth metals like yttrium.

One could argue a cabin-style zero-impact lifestyle would be the ethically
sound thing to do, but the land you purchase to till was the result of
systemic genocide and internment of tons of Native Americans (modern estimates
between 76 million down to less than a quarter million over 4 centuries -
obviously not all by the sword but those are still Stalin-esque numbers) over
the course of a few centuries which makes the loss WW2 genocide look like a
joke.

I really can't blame China for doing what any nation does as they progress
into an industrialized 'first world' society. Travesties occur on all sorts of
level in the pursuit of 'national progress' set by the agenda of a few tens of
thousands of people. The populace isn't any more guilty than you and I are of
the half a million deaths in Iraq. And I don't think those who are polluting
are doing anything different than what the US did as we Manifest-Destiny'd our
way through the country, reaping coal, oil, timber, tobacco, and cotton,
without which our nation wouldn't have had the funding to progress into what
we are (for better or worse..)

~~~
DanBC
> We're just as much to blame every time we whip out or iPhone --
> ([http://www.cnet.com/news/riots-suicides-and-other-issues-
> in-...](http://www.cnet.com/news/riots-suicides-and-other-issues-in-...))
> not only involves working conditions so bad that people are driven to
> literally jump off the roof of the building

But it's not clear that the suicide rate is higher than the rest of the
population.

> so frequently that managers placed a net down

That's a good thing. Restricting access to means and methods is a mainstream
bit of suicide prevention. For tall buildings this means putting the telephone
number for suicide prevention helplines around, and putting fences up, and
installing nets if fences can't be put in place.

Of course, that's only the beginning, so if you're complaining that that's all
they do then I agree, they need to do more.

But putting nets up is more than many places do. How many multistory car parks
do you see that have easy access - no fencing, no netting?

------
hdabrows
So the total amount paid by DuPont was less than $100 million? Even with
thousand of personal-injury cases pending this sounds like pocket change to a
company with over $30 billions in revenues. How is this supposed to deter
others?

~~~
themartorana
The (very low) cost of doing business.

------
Zardoz84
This is worst that the situation with asbestos. My grand father died by a lung
cancer, probably related to asbestos. He worked on a factory, many years,
using it without any kind of protective suit. Far as I know, nearly all co-
workes that he had, has been dying like flys this lasts decades.

I hope that DuPont's get sued to the oblivion.

------
marcoperaza
Here's a great clip of Milton Friedman answering a question from a young
Michael Moore about a similar issue, the exploding Ford Pinto debacle. The
uploader put a childish title, but the video itself is good.
[https://m.youtube.com/watch?v=VdyKAIhLdNs](https://m.youtube.com/watch?v=VdyKAIhLdNs)

It's not a directly analogous situation, but it's easy to forget that there
_is_ a level of toxins that we prefer, over paying a lot more or not being
able to have certain goods at all. Trying to deceive the public about the
risks, however, is inexcusable.

~~~
pbhjpbhj
>but it's easy to forget that there is a level of toxins that we prefer, over
paying a lot more or not being able to have certain goods at all //

Profit motive is the part you've missed out there. Often we could have the
goods, with less toxic effluent produced, at the same price but with less
profit to the capital holders. So yes whilst the poor could forgo more
"luxuries" it would in general be far easier for those who are richer to forgo
relatively extreme luxuries. The greatest impact is probably made from the top
end. I can refuse to buy Nestle products forever but it doesn't make a
difference to Nestles terrible production and marketing practices at all - yet
if one major shareholder takes the same stand then the ethics of the company
can be changed rapidly.

In the UK we've seen some companies who appeared to be acting not only for
profit taken over by larger international corporations that seem to seek
nothing else - I'm thinking Cadbury taken over by Kraft - with [my perception
being:] an immediate reduction in quality of produce, apparent manipulation of
product weights (thinner bars of chocolate look the same size on the shelf;
differently moulded bars have less chocolate but look the same size), apparent
reduction in use of Fairtrade ingredients, increased prices. None of that
needed to happen, Cadbury were profitable already. It's not _just_ down to the
consumer; Kraft have after all reduced consumer choice with their takeover.

In general if companies with poor ethics get more profit (eg by abusing the
environment) then those companies can forceably takeover companies with better
ethics.

~~~
marcoperaza
A company that's willing to make a product for a 20% margin might not be
willing to make that same product for a 5% margin. Would you put all of your
savings in an account with 1% interest and zero-risk? The opportunity cost is
important too. Also, remember that your pay as an employee depends on the
success of the company, just as much as the dividends for the owners do. Not
to mention that the owners include just about all of society, through mutual
funds, pension funds, and retirement accounts. The more you raise burdens to
business and profit, the poorer your society gets.

That's not to say we shouldn't regulate pollution, but we can't ignore the
trade-offs involved. It's not just a matter of the rich taking less of a cut;
that's not how it works.

~~~
pbhjpbhj
>A company that's willing to make a product for a 20% margin might not be
willing to make that same product for a 5% margin. //

Generally those doing the actual manufacture are probably perfectly happy to
do it if they get the same wage. The share-holders perhaps won't want to
invest, but then we're back to profit motive.

A company can in theory continue to pay all the employees and make zero
profit, it can succeed in all it's goals except in paying out a large return
for investors.

~~~
marcoperaza
Even if, in theory, you can have a static society by forcing everyone to keep
doing what they're currently doing--which you can't, because many peoples'
business is providing services to new or closing businesses, and any
unexpected events will cause cascading effects that your static society can't
accommodate--I don't see how that's at all desirable or relevant to real
economic issues.

And of course the profit motive is central. It's the whole reason why anyone
makes products in the first place.

------
eevilspock
Related story and comments, 5 months ago: _The Teflon Toxin (firstlook.org)_
[https://news.ycombinator.com/item?id=10045156](https://news.ycombinator.com/item?id=10045156)

~~~
goldenkey
The real article (that this was ripped from):
[https://theintercept.com/2015/08/11/dupont-chemistry-
decepti...](https://theintercept.com/2015/08/11/dupont-chemistry-deception/)

~~~
dang
Not a rip; theintercept.com and firstlook.org are the same organization.

~~~
goldenkey
I know, the NYTimes article is a rip. But any additional exposure is good. So
I would not hold it against them.

~~~
dang
Ah, I see what you meant now. Scoping ambiguity of "this" :)

~~~
goldenkey
.bind(NYTimes)

------
FreedomToCreate
There are a lot of things in this world that we have because somewhere a big
sacrifice is being made. This case with DuPont is one of many, where chemical
companies have taken the liberty to sacrifice something they don't have to
right to, so that they can profit but also so things can be made. So many of
the products we use everyday are most likely tainted in hidden scandals. Just
google what Unilever has been doing in India with mercury. We have to make
these companies accountable and stop using there products until better methods
to produce it are developed. Its equivalent to me saying "Hey give up oil, it
damages everything."

~~~
hdabrows
What if instead DuPont followed proper disposal practices like recommended by
the supplier of the chemical?

> Though PFOA was not classified by the government as a hazardous substance,
> 3M sent DuPont recommendations on how to dispose of it. It was to be
> incinerated or sent to chemical-waste facilities. DuPont’s own instructions
> specified that it was not to be flushed into surface water or sewers.

There's nothing noble here, just a company being greedy. We could still have
those things you are referring to but without the costs to the public.

~~~
tamana
And 3M people made the chemical without caring if it would be handled safely.

~~~
twistedpair
3M also had the wherewithal to stop making the chemical when the effects
became official, so DuPont went out and started making it themselves. Nice
work, DuPont.

------
TazeTSchnitzel
Meanwhile the European Commission dropped plans to regulate endocrine-
disrupting substances after corporate pressure.

~~~
MrBuddyCasino
Interesting, got a source?

~~~
TazeTSchnitzel
There was a documentary on the subject entitled _Endocrination_.

------
jacquesm
This is quite interesting next to the kind of exposure that VW is getting and
the kind of fines involved there.

~~~
themartorana
That's because VW explicitly bypassed regulations that the government is
allowed to place on vehicle emissions. How we got to a place where chemical
regulations are near impossible to create and enforce is the maddening part.

~~~
jacquesm
Exhaust gases are chemistry.

------
mhuangw
Fascinating read - long, but worth it. It's always interesting to see how far
people are willing to go for financial gain.

------
RcouF1uZ4gsC
What I found interesting with this article is the payout from the class action
suit. The lawyers received $21.7 million dollars, while 70,000 plaintiffs all
received $400 a piece. 70,000 * 400 is 28 million dollars. So out of
approximately $50 million dollars, the lawyers kept over 40% and split the
rest 70,000 ways resulting in each plaintiff getting just a little over a
week's worth of work at minimum wage.

------
anotherhue
Corporations are notional entities, granted rights by a government. The
government owes them little in the way of human rights, so how is it so
difficult for a government to impose sanctions on a misbehaving corporation?

The US is in poor company as a country that has a death penalty for humans,
where is the list of corporate offences that justify a dissolution of this
notional entity? Only Bankruptcy?

~~~
apsec112
The US sanctions corporations all the time, by levying fines and imposing
restrictions. Dissolving DuPont would mean firing 60,000 people - most of whom
did nothing wrong - as well as screwing every manufacturer which relies on a
DuPont product, most of which are safe when relevant handling guidelines are
followed. DuPont makes a huge number of things; from Wikipedia, it's the
inventor of "Vespel, neoprene, nylon, Corian, Teflon, Mylar, Kevlar, Zemdrain,
M5 fiber, Nomex, Tyvek, Sorona and Lycra", and I'm sure a ton of other stuff.

~~~
anotherhue
I didn't mean to suggest calling for their dissolution, apologies; but the
possibility of it should be a factor in the risk-management and risk/reward
decisions the executives make.

~~~
mirimir
I do think that there should be a "death penalty" for corporations. Back in
the day, before the railroads etc bought off the Supreme Court, incorporation
required demonstration of public benefit. Violation of corporate charter was
grounds for dissolution.

------
mipapage
Another great reason to buy from small, local companies. Keep it simple, be
wary of over-specialization.

