Papantonio, Dupont, C8, and the killer closing argument

Mike Papantonio of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. led a trial team that won a $1.6 million award for Carla Bartlett of Guysville, Ohio this past October. The lawsuit alleged that C8, a chemical used to make Teflon, from a DuPont Co. plant contaminated drinking water and contributed to her contracting kidney cancer.

For the paper’s article about Mass Tort cases (Inweekly, “Giant Killers,” Feb. 4), Papantonio talked about how a last-minute revelation may have been the key to the victory.

“The night before we were to present our closing arguments, we’re having drinks,” Mike Papantonio told Inweekly. “I’ve got my closing done, having been up probably 36 hours pulling everything together and making it succinct.”

His co-counsel, Rob Bilott of the Ohio-based firm Taft Stettinius & Hollister, said to Papantonio, “You know, I was looking through the MSDS sheets.”

MSDA stands for “Material Safety Data Sheet,” which is detailed information bulletin prepared by the manufacturer or importer of a chemical that describes the physical and chemical properties, physical and health hazards, routes of exposure, precautions for safe handling and use, emergency and first-aid procedures, and control measures.

Papantino had already used a few MSDS sheet in the trial and was familiar with them. The sheet Bilott handed to him had a statement the Pensacola trial lawyer hadn’t seen.

Bilott said, “I just kept looking through them, and I found this. I don’t know whether you want to use it.”

The MSDS sheet for C8 said, “We believe it can cause cancer and we based that on the very studies that DuPont did and that we did.”

Papantonio told Inweekly, “That’s in the MSDS sheet. Well, I’m holding it back. We’ve got one more witness, and then we go into closing.

The trial attorney went back to his hotel room and rewrote his closing argument

The last witness was a doctor. Tim O’Brien of Levin Papantonio was handling the witness. Papantonio had one instruction for O’Brien—don’t reveal the importance of the MSDS sheet

“I told Tim, ‘I will beat you bloody if you use the MSDS because I’m about to have some fun with it.’ I told him to hand the MSDS sheet to the doctor, identify it for the record, read out the number to the jury, say it, at least, four times,” said Papantonio.

He knew the defense had dealt with hundreds of documents, and they weren’t going to address this MSDS sheet.

In his closing argument, the defense counsel stood up and said,”I’ve heard Mr. Papantonio talking about cancer, asking us, ‘Did we know about cancer?’ Talking about how we knew about cancer, suggesting to you that we had some document about cancer. Have you seen it? I haven’t seen it.”

Papantonio said, “I’m sitting there. My jacket is on fire. I’ve got the MSDS sheet folded in my breast pocket.”

The defense rested. It was Papantonio’s turn. His rebuttal was the last thing that would be said in the trial. After it, the case was in the hands of the jury. The defense counsel wouldn’t have a chance to say another word.

Papantonio stood and addressed the jury. “Ladies and gentlemen, I think I heard a challenge when Mr. Mace was up here talking. I think he said, ‘Show me a document.’ I believe that’s what he said. As a matter of fact, I’m positive that’s what he said.”

Papantonio turned and looked at the defense counsel. He said, “Mr. Mace, I want to show you a document. Matter of fact, I want you to read the document with me if you would.”

He pulled out the folded MSDS sheet from his coat pocket. He said, “Why don’t you read this with me?”

Papantonio told Inweekly, “We read that line, ‘Cancer, our tests, your tests show it.’ Buddy, it was over.”