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March 01, 2019 Articles

PFAS Litigation: Just Getting Started?

There is no indication that PFAS-related litigation will slow down anytime soon.

By James P. Ray

From nonstick pans to waterproof and stain-proof clothing to improved firefighting foams, the use of per- and polyfluoroalkyl substances (PFAS) was ubiquitous in the latter half of the 20th century. In more recent years, we have learned more about the potential health effects of exposure to PFAS (even at very low levels). We have the ability to detect PFAS in the environment at increasingly lower levels, and we have discovered PFAS at more and more sites. The combination of these factors has led to countless PFAS-related lawsuits, in which plaintiffs are claiming damages for personal injury, medical monitoring, diminution of property values, and response costs. There is no indication that this will slow down anytime soon.

This article provides a summary of some of the more significant types and examples of PFAS lawsuits pending or recently settled in courts throughout the country. Manufacturers, utilities, developers, and risk managers would be wise to understand the issues being raised in PFAS litigation and develop risk-management strategies to avoid such litigation.

Parkersburg, West Virginia, Litigation: The C8 Science Panel

In the early 2000s, a group of residents brought a class action lawsuit for PFAS contamination from DuPont’s Parkersburg, West Virginia, facility, where DuPont used perfluorooctanoic acid (PFOA, or C8) in the manufacture of Teflon. The contamination was alleged to have affected six water districts and numerous private water supply wells. The plaintiffs sought injunctive relief and damages for medical monitoring, personal injury, and property damage.

The case settled in late 2004, with the settlement including the formation of the C8 Health Project, through which class members could have blood tests done to check for certain PFAS compounds and indicators of PFAS-related diseases. Information and data gathered from the C8 Health Project would be used by the independent C8 Science Panel formed under the settlement to study the possible connection between PFOA exposure and human diseases. In 2013, the C8 Science Panel concluded its work, finding a probable link between PFOA exposure and six diseases: kidney cancer, testicular cancer, high cholesterol, thyroid disease, ulcerative colitis, and pregnancy-induced hypertension and preeclampsia.

Under the terms of the 2004 settlement, class members reserved personal injury claims associated with diseases found by the C8 Science Panel to be linked to PFOA. About 3,500 people have since asserted personal injury claims against DuPont. These claims were consolidated in the U.S. District Court for the Southern District of Ohio by the U.S. Judicial Panel on Multidistrict Litigation. There were trials in several of these cases, including a $1.6 million verdict in a kidney cancer case, a $5.5 million verdict in a testicular cancer case, and a $2 million verdict in a testicular cancer case (plus a $10.5 million punitive damages award). In 2017, DuPont agreed to settle the pending claims for $670 million, with the possibility of another $250 million for unknown claimants.

Saint-Gobain Performance Plastics: Contaminated Wells

There has been a flurry of cases against Saint-Gobain Performance Plastics and its predecessors as a result of manufacturing operations at locations where stain- and water-resistant fabrics were made: Hoosick Falls, New York; Bennington, Vermont; and Merrimack, New Hampshire.

There have been more than 15 lawsuits involving the Hoosick Falls contamination, many consolidated in Baker v. Saint-Gobain Performance Plastics Corp. in the U.S. District Court for the Northern District of New York. The cases involve contaminated public and private wells, as well as medical monitoring claims. Over 3,000 people had their blood tested, with the median PFOA level over 30 times the national average. During the pendency of the cases, in 2017, the State of New York released a study concluding that there was no statistically significant increase in the cancer rate for any of the cancers associated with PFOA exposure. Nonetheless, the cases continue (not surprisingly, as the study findings are likely not relevant to the causation analysis in individual cases).

In Vermont, plaintiffs filed a putative class action alleging contamination of well water at over 100 residences near the two Bennington-area facilities.

In 2002, the Hoosick Falls and Bennington facilities closed, with operations moving to Merrimack, New Hampshire. The Merrimack facility is also the subject of numerous lawsuits, including a putative class action, as a result of PFOA contamination of public and private water supply wells.

As of this writing, these actions against Saint-Gobain remain unresolved.

Burdick: PFOA Invasion Injury Class

In 2018, the court in Burdick v. Tonoga, Inc. certified a medical monitoring class (referred to as the PFOA Invasion Injury Class). 2018 N.Y. slip op. 51075(U) (N.Y. Sup. Ct. July 3, 2018). The case involves claims for property damage and medical monitoring based on PFOA contamination of public and private water supply wells in Petersburg, New York. The contamination was alleged to have come from a manufacturing facility where Teflon-coated fabric was made.

All members of the PFOA Invasion Injury Class had PFOA levels in their blood above the recognized average background level. They also had ingested water from either a contaminated public water supply system or a private water supply well, known to be contaminated with PFOA, within seven miles of the defendant’s manufacturing facility.

In certifying the medical monitoring class, the court identified a number of issues common to all class members, including whether the defendant was negligent in releasing PFOA, whether PFOA is hazardous to health, and whether medical monitoring is available for diseases linked to PFOA exposure.

Firefighting Foam Cases

The personal injury and medical monitoring cases discussed above involve contamination from manufacturing facilities, but there is another class of cases associated with impacts caused by the use of aqueous film-forming foam (AFFF). AFFF is a PFAS-containing foam used to fight chemical fires and utilized in related training exercises. These cases often involve airports, fire-training facilities, or military bases.

For example, the County of Barnstable, Massachusetts, sued 3M, Tyco Fire Products, Chemguard, National Foam, and other AFFF manufacturers for PFAS contamination of water supply wells serving 18,000 Cape Cod residents. The alleged source of the PFAS contamination was the county property where fire-training exercises had been conducted using AFFF.

Many of those same companies are defendants in a lawsuit filed by the City of Westfield, Massachusetts, in February 2018. The lawsuit alleges that the city’s water supply was contaminated by AFFF used during firefighting and training exercises by the Air National Guard at Westfield-Barnes Regional Airport.

In Giovanni v. United States Department of the Navy, the U.S. Court of Appeals for the Third Circuit recently permitted a suit to proceed against the navy, where plaintiffs are seeking medical monitoring for PFAS impacts. The district court had originally dismissed the claims on the grounds that they would interfere with an ongoing cleanup and would amount to a challenge to an ongoing response action, in violation of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). On appeal, the circuit court held that the request for medical monitoring would not interfere with the cleanup, that it was more a claim for injunctive relief, and that the navy had waived sovereign immunity for such claims.

In late 2018, over 80 AFFF cases were consolidated in multidistrict litigation (MDL) in the U.S. District Court for the District of South Carolina. These include cases from Colorado, Delaware, Florida, Massachusetts, New York, Pennsylvania, and Washington.

While many of the AFFF cases involve common law and product liability claims such as negligence, nuisance, breach of warranty, and contribution, the City of Newburgh, New York, brought claims for injunctive relief under the Resource Conservation and Recovery Act (RCRA), CERCLA, and the Clean Water Act. The city, alleging that PFAS and other hazardous substances from Stewart International Airport and Stewart Air National Guard Base have contaminated the city’s water supply, is seeking to have PFAS manufacturers clean up the PFAS contamination emanating from those locations. The city is asking the MDL court to create a separate track for what it refers to as “site-specific environmental claims.” [Login required.]

Government Enforcement Actions

State agencies also take countless actions seeking injunctive relief, remediation costs, and natural resource damages associated with PFAS contamination. For example, in early 2018, the State of Ohio sued DuPont to get the company to fully define and remediate the extent of PFAS impacts in Ohio from the Parkersburg, West Virginia, plant. Also in early 2018, 3M agreed to pay the State of Minnesota $850 million to settle a $5 billion lawsuit related to 3M’s alleged dumping of PFAS throughout the state; the money is to be used to address PFAS-related water quality and supply problems facing cities, towns, and private well owners throughout the state. And in June 2018, the State of New York sued PFAS manufacturers seeking $39 million and punitive damages for PFAS contamination at five airports in New York.

Nationwide Class Action: PFAS Science Panel

In October 2018, there was a nationwide PFAS class action filed in the Southern District of Ohio. Hardwick v. 3M Co., No. 2:18-cv-01185 (S.D. Ohio 2018). The named plaintiff is represented by one of the plaintiffs’ lawyers in the Parkersburg litigation. The complaint alleges that the defendants (3M, Dupont, and others) (1) are responsible for numerous PFAS compounds being found in the blood and bodies of the plaintiff and class members and (2) used “the Plaintiff and other class members as part of a massive, undisclosed human health experiment” without their knowledge or consent. Id. ¶ 1. The putative class is defined in the complaint as anyone in the United States with “a detectable level of PFAS materials in their blood serum.” Id. ¶ 91.

Interestingly, the complaint does not seek compensatory damages for personal injury. Instead, the plaintiff is seeking to have the defendants fund an independent panel of scientists (the PFAS Science Panel), similar to the C8 Science Panel, tasked with studying whether a causal connection exists between PFAS in the bloodstream and any injury or human disease.

What’s Next?

We may be seeing just the tip of the PFAS litigation iceberg. So many questions—scientific, legal, or otherwise—remain, the answers to which will continue to emerge over the years to come.

First are the scientific uncertainties. What are the potential health effects associated with exposure to various levels of each of the hundreds of different PFAS compounds? Do we have the ability to detect each of these compounds in environmental media at sufficiently low levels to adequately evaluate the potential risks posed by exposure at contaminated sites? Will cost-effective treatment technologies emerge for addressing PFAS in water supplies? Can early detection of PFAS-related diseases through medical monitoring programs help prevent the advancement of such diseases? As answers to these questions emerge, companies facing potential PFAS liabilities can make more informed risk-management decisions.

There are also a number of nonscientific questions that will affect how companies proceed. Will the potential presence of PFAS cause the reevaluation of Superfund sites or other previously addressed contaminated sites, leading to unforeseen additional response costs? What impact will PFAS uncertainty have on transactions? Will personal injury plaintiffs start to identify additional potential defendants beyond those most closely associated with the manufacture and use of PFAS, such as the manufacturers and sellers of consumer goods containing materials (e.g., waterproof and stain-resistant fabrics) made using PFAS? (This became the asbestos plaintiffs’ playbook: following the bankruptcy of the major miners and producers of asbestos, plaintiffs then started suing anybody who made a product containing asbestos, regardless of how much.) Environmental activist organization Greenpeace reportedly tested a number of articles of waterproof clothing in 2015, claiming that they still contained significant levels of PFOA. Might the makers of those jackets and gear be the next PFAS litigation targets?

Regardless of the answers to these questions, it is obvious that PFAS litigation is here to stay. And it is significant enough, and PFAS is pervasive enough, that PFAS liabilities should remain on your radar screen.

James P. Ray is a partner at Robinson & Cole LLP in Hartford, Connecticut.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).