October 29, 2018 Practice Points

PFAS Class Seeks Court-Ordered “Independent Panel of Scientists”

By Paul V. Majkowski

As a somewhat novel, or at least uncommon, request for relief, the plaintiff in a putative class action for exposure to PFAS (per- and polyfluoroalkyl substances) requests that the court order “the establishment of an independent panel of scientists,” which would be “jointly selected by the parties” but funded by the defendants, to render findings on the alleged health effects associated with exposure to PFAS, which would be “definitive and binding on all the parties.” Hardwick v. 3M Co., Civ. A. No. 2:18-cv-1185 (S.D. Ohio, filed Oct. 4, 2018).

The complaint sets forth:

In particular, Plaintiff and the proposed Class seek the establishment of an independent panel of scientists, including but not limited to epidemiologists, toxicologists, medical doctors, and/or exposure-risk assessors, to be jointly selected by the parties (the “PFAS Science Panel”) and tasked with independently studying, evaluating, reviewing, identifying, publishing, and notifying/informing the Class of Sufficient Results that shall be deemed definitive and binding on all the parties, which work, including but not limited to any testing, sampling, or monitoring deemed appropriate by the PFAS Science Panel, (hereinafter “PFAS Science Panel Work”) shall all be funded by Defendants.

The issues raised by this proposal abound, and we offer a few initial observations here.

First, while the notion of an “independent” panel finding the “science” that is truly at the heart of the matter has some appeal, the process of empaneling and managing such a panel would seem quite daunting and is present perhaps an insurmountable challenge. How would candidates be identified, vetted, and challenged, especially if many scientists are attacked for having done work for industry? How would the court manage the panel’s deliberations? What type of transparency would be required of those deliberations to reveal any pertinent dissent from whatever consensus the panel reached? How would findings be submitted and published in the peer-reviewed literature? How would the court’s management of the panel intersect with its gatekeeping obligations under Daubert principle?

Second, even if we acknowledge that the law generally lags behind the science and see this device as an attempt to remedy that seeming inequity, does it in fact effectively and improperly shift the burden to defendants to disprove causation (at least by virtue of compelling defendants to fund the creation of the scientific evidence necessary for the plaintiff’s case)?

Third, accepting that the practical obstacles could be overcome and that some degree of burden-shifting is permissible, what is the threshold of showing needed for a court to impose such relief? The science for detecting substances in people’s bodies continues to improve, allowing detection at smaller and smaller amounts, so what alleged degree of exposure would qualify for such court-directed independent study? What additional corroborating science and medicine as to adverse health effects would be necessary? Some of these considerations seem akin to a medical monitoring claim’s inquiry of whether the subject risk is sufficient to warrant the monitoring scheme. Similar to the medical monitoring context, one might see the requested equitable relief as a tactic to seek and obtain class certification that would otherwise be difficult.

It remains to be seen how the court will respond to this request and if the proposed remedy will gain traction and, if so, under what circumstances it will elsewhere.

Paul V. Majkowski is a partner at Rivkin Radler LLP, in New York, New York.

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