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And the Winner Is...

Updated: Mar 4, 2020

Deliberations are continuing today in a case where a woman claims to have suffered kidney cancer and a man claims to have suffered testicular cancer as a result of defendant DuPont de Nemours, Inc. discharging toxic chemicals into the Ohio River and contaminating the drinking water.

DuPont does not deny that its Washington Works plant along the Ohio River discharged toxic chemicals into the water over a period a years; rather, DuPont’s defense is that plaintiffs cannot prove that the proximate cause of their cancer is the chemicals. Hypertension and obesity, as well as genetics, could also be responsible, according to DuPont. “They didn’t bring the science,” stated the defense attorney on summation.

This case that not only points up the critical nature of the expert testimony on both sides of the case, but it also highlights the extreme importance of a strong case theory that distills not only the facts and law, but the essential emotion of the case – the pathos that Aristotle discusses as the third prong of successful argument. Can DuPont grab the moral high ground in this case, or at least neutralize the negative image the plaintiffs are painting?

The science is the evidentiary weapon, and the attorneys’ talent in wielding that weapon will go a long way towards a successful verdict for either side. But the tipping point is the essential primal truth – identified with key words and phrases in the case theory – that will capture the jurors’ inherent human belief system and direct their decision making.

UPDATE ON MARCH 4, 2020: In this hard fought case, the jury was out for four days and sent out two deadlock notes, so that the judge provided an Allen charge. The jury yesterday hung on the case of the woman with kidney cancer, and the judge declared a mistrial as to that plaintiff. The jury found for the male plaintiff with testicular cancer, and awarded him and his wife $50 million. So, a split decision.

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