Last year, lawsuits against major chemical manufacturers resulted in settlements totaling more than $11 billion. This year, as the EPA brings even more regulations into play and awareness of the extent of the harm from per- and polyfluoroalkyl substances (PFAS) contamination continues to grow, analysts predict substantially more lawsuits will be filed, resulting in even higher settlement numbers.
In some ways, this class of litigation is similar to the wave of asbestos litigation cases, which has been characterized as the longest-running mass tort in U.S. history, with the first claims filed in the 1960s. The legal battles in this arena were also fierce, complex, and lengthy. Although this litigation continues, many of the class actions were settled in 2005 when Halliburton Co. agreed to fund a trust for victims in the amount of $5.1 billion.
What are PFAS?
PFAS are a group of manufactured chemicals that include perfluorooctanesulfonic acid (PFOS), perfluorooctanoic acid (PFOA), and GenX. PFAS are also referred to as “forever chemicals” because of their resistance to breaking down in the environment over time. There are nearly 5,000 different types of PFAS, some of which have been more widely used and studied than others, according to the U.S. Food and Drug Administration (FDA).
They have been produced by a variety of industries since 1940 for use in water and stain repellant materials, as well as fast-acting firefighting products (known as AFFF). These chemicals are also found in paint, nonstick Teflon, cleaning and personal care products, and food packaging materials. PFAS are also known for their ability to repel oil and water.
PFAS contamination in people can occur through consumption of contaminated food or water and through skin absorption.
Traces of these chemicals have been found in the blood of virtually everyone tested over the last 20 years by the Centers for Disease Control and Prevention. They have also been linked to a host of health issues, including cancer, immune system deficiencies, liver damage, negative developmental effects in infants and children, lower fertility rates, and increased cholesterol.
EPA data released last year reveals PFAS were found in “one in four public drinking water systems this year in concentrations at or above the [EPA’s] minimum reporting levels,” according to USA Today.
PFAS litigation
“Recently, the range of lawsuits and companies targeted has expanded to include not only manufacturers but also other companies in the chain of commerce — including those that use the chemicals in their finished products,” the Baker McKenzie Global Litigation News Blog says. “The types of plaintiffs asserting PFAS-related claims are also expanding. State and local governments have begun filing lawsuits, largely claiming contamination of water supplies.
“In one such case, Michigan v. Domtar Industries Inc., … Michigan’s attorney general seeks to recover from a paper manufacturer because its manufacturing process produced sludge that purportedly contained high levels of PFAS detected in groundwater and surface water.
“Plaintiffs lawyers and putative defendant companies are closely watching the AFFF MDL (multidistrict litigation currently consolidated in South Carolina federal court) because many anticipate that these cases will lay the foundation for the future of PFAS mass tort litigation. Until now, there has been limited scientific support for many of the claims raised in litigation.”
Litigation targets
“Legal experts predict more PFAS-related lawsuits to be filed outside of the MDL in 2024, including more claims against consumer brands whose products contain PFAS and more personal injury claims,” notes Reuters.
In addition to the current litigation involving PFAS manufacturers, analysts predict an uptick in personal injury cases.
Potential litigation targets include:
- Chemical PFAS manufacturers
- Manufacturers using PFAS in products
- Importers
- Transporters of products containing PFAS
- Restaurant industry entities using food wrappers and packaging containing PFAS
- Retailers selling clothing containing PFAS
Cause and harm
PFAS litigation presents several complex legal issues, like who’s responsible and proving actual harm. This type of litigation takes years for resolution.
“In the case of the Wausau lawsuit, for example, individual manufacturers may argue that their company is not responsible for the contamination but another company is,” notes Wisconsin Public Radio. “In the legal process known as discovery, both sides would try to bolster their claims by seeking company records and performing complex scientific testing on the city’s water, which in 2022 was found to be contaminated with PFAS in all its municipal wells.”
Even in the chemical manufacturing PFAS litigation, determining whom to hold responsible has been challenging, with the legal defense characterized as a game of corporate pass the buck.
“To avoid responsibility for what many experts believe is a public health crisis, leading chemical companies like Chemours, DuPont and 3M have deployed a potent mix of tactics,” according to The New York Times. “They have used public charm offensives to persuade regulators and lawmakers to back off. They have engineered complex corporate transactions to shield themselves from legal liability. And they have rolled out a conveyor belt of scantly tested substitute chemicals that sometimes turn out to be just as dangerous as their predecessors.”
DuPont manufactured “forever chemicals” from the 1950s to 2013, specifically using the manmade chemical PFOA, commonly known as C8.
Chemours is the former performance chemicals unit of DuPont that spun off as a separate company in 2015. Corteva was the former DuPont agricultural division and became its own entity in 2019.
Determining the responsible party to hold liable for PFAS contamination will involve lengthy opposing testimony from various scientific experts.
The AFFF MDL is expected to create a legal strategy playbook for future personal injury cases.
“But those filing PFAS lawsuits, whether on behalf of municipalities or affected residents, likely do not need to show that manufacturers knew the risks of the chemicals at the time they allowed them to enter the water system, said attorney Philip Comella of the Chicago firm Taft Stettinius and Hollister, who has worked extensively on PFAS cases,” the Wisconsin Public Radio article adds.
“‘It’s strict liability, which means that if you produced a product and it causes harm, you don’t have to know that it was going to cause injury,’ Comella said.
“Evidence of negligence or other wrongdoing can strengthen a plaintiff’s claims, Comella said, but typically are not necessary in such cases.”
Proving actual harm is another area that’s tricky in this type of litigation because it can be difficult to prove that PFAS are the cause of particular health issues, as so many other factors can contribute to each type of health issue linked to PFAS.
For example, in suits involving harm in Louisiana’s Cancer Alley, alleged victims are often questioned brutally regarding smoking habits.
“In at least one past [PFAS] case, individuals have argued that manufacturers should pay for the cost of medical monitoring ‘to make sure to catch whatever illness early, so it could be treated,’ Comella said. But different states have different policies around this, and it’s a less well-defined area of law. As a result, though possible, medical monitoring is typically not part of PFAS settlements.
“In many cases, companies have chosen to settle lawsuits rather than bring them to trial. That may in part be a public relations calculation … or an attempt to avert the long and costly trial process. In 2021, Tyco Fire Products and other manufacturers agreed to a $17.5 million settlement with residents of the area around Peshtigo where chemicals used at a firefighting training facility contaminated the water.”
To date, DuPont, Chemours, and Corteva have collectively settled some state-brought lawsuits—$110 million to Ohio and $75 million to Delaware.
When large settlements start being paid out, it attracts additional lawsuits for those seeking compensation for alleged harm.
And, knowing the EPA is creating additional regulations for costly PFAS remediation in drinking water systems points to the likelihood that other states will also file suit.
Filing of additional class actions and personal injury suits related to PFAS contamination is a certainty for 2024. Impacted industry is advised to take appropriate steps to protect themselves from PFAS liability wherever possible.
“In addition to the several thousand personal injury claims currently pending, and growing by the day, the state Attorney Generals are seeking damages for a myriad of damages, and the EPA … is considering the promulgation of a new regulation to establish certain PFAS as hazardous substances under CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) which will only expand liability concerns,” Reuters notes. “For all of these reasons, those companies not involved with AFFF but with PFAS in other applications should be concerned and consider measures to reduce or eliminate such use.”