Article Update: PFAS Litigation Overview

PFAS Litigation Update

Per- and poly-fluoroalkyl substances (PFAS) encompass a myriad of chemicals commonly added to consumer goods and industrial products such as firefighting foams. PFAS properties make products waterproof, nonstick, and stain resistant. Also known as “forever chemicals,” PFAS do not break down easily and can dissolve in water, leading to significant health risks. Despite these persistent, widespread, and well-known risks, industries continue to use PFAS chemicals, resulting in significant litigation over the issue.

In this article, you will find a review of PFAS generally and the environmental and health risks of their use. We’ll then review current litigation and how attorneys and subject matter experts alike are at the forefront of the debate.

What Are PFAS?

PFAS substances are used to make fluoropolymer coating and products that resist heat, oil, stains, grease, and water. In use since the 1940s, these chemicals can be found in clothing, furniture, adhesives, food, packaging, heat-resistant and nonstick surfaces, and electrical insulation. PFAS are also used in support of major industries such as aerospace, construction, electronics, firefighting, and the military. In short, PFAS chemicals can be found nearly anywhere, with risks associated with them everywhere.

Per the Environmental Protection Agency (EPA), there is a clear PFAS presence in the following:

• Drinking water – in public drinking water systems and private drinking water wells.
• Soil and water at or near waste sites – at landfills, disposal sites, and hazardous waste sites such as those that fall under the federal Superfund and Resource Conservation and Recovery Act programs.
• Fire extinguishing foam – in aqueous film-forming foams (or AFFFs) used to extinguish flammable liquid-based fires. Such foams are used in training and emergency response events at airports, shipyards, military bases, firefighting training facilities, chemical plants, and refineries.
• Manufacturing or chemical production facilities that produce or use PFAS – for example at chrome plating, electronics, and certain textile and paper manufacturers.
• Food – for example fish caught from water contaminated by PFAS and dairy products from livestock exposed to PFAS.
• Food packaging – for example in grease-resistant paper, fast food containers/wrappers, microwave popcorn bags, pizza boxes, and candy wrappers.
• Household products and dust – for example in stain and water-repellent used on carpets, upholstery, clothing, and other fabrics; cleaning products; non-stick cookware; paints, varnishes, and sealants.
• Personal care products – for example in certain shampoos, dental floss, and cosmetics.
• Biosolids – for example, fertilizer from wastewater treatment plants that are used on agricultural lands can affect ground and surface water and animals that graze on the land.

As a result of its widespread, persistent use, PFAS chemicals have made their way into our water, soil, air, and food. The chemicals find their way into our environment via production or waste streams. Despite these well-known and alarming risks, industries continue to use PFAS chemicals, resulting in significant litigation over the issue.

Health Effects of PFAS

Toxicological evidence supports adverse reproductive, developmental, and immunological effects in animals and humans alike. One report by the Center for Disease Control and Prevention’s National Health and Nutrition Examination Survey (NHANES) presented findings that PFAS was present in the blood of nearly 97% of Americans. Other studies have shown the potential for PFAS to negatively impact metabolism and fertility, reduce fetal growth, increase the risks of obesity and some forms of cancer, and reduce the infection-fighting ability of the immune system. Additional studies have connected exposure to PFAS with increased blood pressure and cholesterol, reduced vaccine response, interference with natural hormones, and developmental effects in children, including low birth weight, accelerated puberty, bone variations, and behavior changes.

Much is still unknown about the precise interaction between PFAS chemicals and human health. Such uncertainty surrounding these potentially destructive substances is a significant cause for concern for environmental and health advocates alike. Of particular concern are the compounding effects on communities already vulnerable to environmental health hazards. Per the Agency for Toxic Substances and Disease Registry (ATSDR), the most common methods of PFAS exposure are:

• Drinking contaminated municipal water or private well water
• Eating fish caught from water contaminated by PFAS
• Accidentally swallowing contaminated soil or dust
• Eating food grown or raised near places that used or made PFAS
• Eating food packaged in material that comes from PFAS
• Using some consumer products such as stain-resistant carpeting and water-repellant clothing

It is important to note that exposure to PFAS via today’s consumer products is relatively low compared to exposure by way of contaminated drinking water.

Current Litigation Related to PFAS

The pervasive use of PFAS chemicals in industrial and consumer products and the consequent environmental and health hazards have resulted in a complicated web of litigation as of late. The majority of these lawsuits can be organized into three major categories: firefighting foam, water contamination, and product-related litigation. Some of these cases have already consolidated into Multi-District Litigation (MDL), in which each claim will be handled on its own merit and compensation will be determined based on the degree of suffering of each plaintiff.

The latest update on the PFAS litigation is that three major chemical companies, Chemours, DuPont, and Corteva, have agreed to pay over $1 billion to settle the first wave of claims. These companies and others have been accused of contaminating drinking water across the country with PFAS, also known as "forever chemicals," which have been linked to cancer and other illnesses.

The companies have agreed in principle to set up a $1.19 billion fund to help remove PFAS from public drinking water systems. PFAS have been linked to liver damage, weakened immune systems, and several forms of cancer, among other harms, and are referred to as forever chemicals because they linger in the human body and the environment.

In addition, it was reported that 3M had reached a tentative deal worth "at least $10 billion" with U.S. cities and towns to resolve related PFAS claims. Hundreds of communities across the country have sued Chemours, 3M, and other companies, claiming that their products contaminated their soil and water.

Firefighter Suits

Firefighters come into contact with PFAS substances regularly through some of the most important products on the job: flame-retardant firefighting gear treated with PFAS and firefighting foam. These suits allege that firefighters also have significant levels of PFAS in their bloodstream. In turn, defendants deny wrongdoing and maintain that their products are safe, meet or exceed the applicable industry standards, and enable firefighters to do their jobs safely and effectively. The main question arising in these suits, therefore, is whether or not exposure to PFAS by way of their equipment resulted in the elevated PFAS in their blood and that those levels in turn played a causal role in the ailments they are facing.

In City of Stuart v. 3M Co., et al., the Florida coastal town’s water authority brought suit against various companies that manufacture PFAS-containing firefighting foam. At a case management conference in April, defendants asked for summary judgment on the case. However, on May 5th, 2023, Federal Judge Richard Mark Gergel denied their motion. His Order and Memorandum Opinion posed that Plaintiff’s allegations were not merely speculative and that the question of compensation should be presented to a jury.

Water Contamination

Litigants alleging harm caused by contaminated drinking water are seeking compensation for related medical expenses and potential pain and suffering that may have occurred as a result of PFAS-exposed water. These cases can include but extend well beyond firefighting foam contamination. Many companies use (or have used) PFAS chemicals in their manufacturing practices. In turn, tainting community water supplies.

• In September 2022, 3M and Wolverine World Wide agreed to settle a class action lawsuit for $54 million that alleged the companies caused the release of PFAS chemicals into the environment in Kent County, Michigan.
• Scores of water providers from around the country joined an MDL against various manufacturers such as 3M Company, Tyco Fire Products, and Chemguard, Inc. of aqueous film-forming foam (AFFF) over toxic chemical buildup in groundwater supplies. These lawsuits involve allegations that AFFFs, which are used to extinguish liquid fuel fires, polluted the groundwater near certain airports and other industrial locations with PFAS.
• Numerous settlements in New York, Rhode Island, and Alabama have been reached in similar lawsuits, with amounts ranging between 12 to 65 million.

Product-Related Litigation

Litigation of this type illustrates a new trend in PFAS harm: economic loss. A survey conducted by Sheppard Mullin discovered at least 24 putative class action lawsuits targeting packaged goods containing PFAS were filed between January 1, 2022 and August 1, 2022, all of which seek only economic damages rather than claiming personal injury due to exposure to PFAS. These lawsuits are based on the theory that products containing PFAS chemicals render “healthy,” “eco-friendly,” or “sustainable” products mislabeled and therefore worth less than what consumers paid for them. After a Consumer Reports article identified the staggering amounts of the forever chemicals in food packaging, Burger King and Mcdonald’s quickly faced their fair share of these suits on that economic loss theory.

PFAS chemicals were recently found in Bolthouse Farms smoothies at levels far above federal advisory drinking water limits. The drink’s packaging states it is made of “100% fruit juice,” leading consumers to believe they are healthy. As unlisted ingredients, PFAS are “synthetic chemicals that are, by definition, artificial,” leading scholars to believe the contamination began with the fruit harvested for the beverages. The suit was brought in the Southern District of New York early this year, asking for monetary compensation.

This Bolthouse Farms suit comes on the heels of similar allegations for another popular beverage: Simply Topical fruit juices. This class-action lawsuit alleges that Coca-Cola and Simply Tropical deceived customers with claims of an all-natural, healthy product when the juice has been found to be contaminated with toxic PFAS at levels “hundreds of times” above federal advisory limits.

BANKRUPTCY

Kidde-Fenwal, a company that specializes in fire control systems, filed for Chapter 11 bankruptcy on May 14, 2023 as it buckles under the weight of the over 4,400 lawsuits against the subsidiary of Carrier Global Corp. The company has been sued by thousands of individuals, companies, and local governments claiming their products contaminated drinking water and soil with PFAS chemicals. The litigation has cost Kidde-Fenwal $6 million in 2023 alone, causing the business to claim that its likely liability “substantially exceeds” its capacity to pay.

This supports the theory that the PFAS litigation has the potential to mirror, even surpass, asbestos litigation in terms of its scope and liabilities. Due to the costs of asbestos lawsuits, many manufacturing companies sought and obtained bankruptcy protection from the courts. While this certainly didn’t end their liability, it caused plaintiffs to pivot and evolve to this day. It’s only reasonable to assume Kidde-Fenwal will not be the last PFAS-related company to seek help from Bankruptcy Court.

PFAS Litigation and Expert Specialties

Of course, with such extensive litigation comes increased demand for expert witnesses with varying specialties. Because the precise connection between PFAS and the various harms alleged in these causes are not clear, expert witness testimony comes to the forefront. The expertise necessary in this cacophony of litigation includes, but is certainly not limited to:

• City, product, and industrial engineering
• Earth and environmental science
• Public health
• Toxicology
• Food science
• Immunology, endocrinology, oncology, and endless other areas of medicine
• Chemistry and biology
• Social sciences

Experts will be crucial in determining exactly how PFAS chemicals find their way into the bodies of those alleging harm, what risks were known at what time, and what industry standards exist in ensuring known risks are alleviated.

Final Words for Attorneys Pursuing PFAS Litigation

As attorneys in the field know all too well, so many of these cases are governed by the question of whether or not defendants knew or should have known about a particular risk, when they knew it, and what – if anything- they did to alleviate the potential harm. With so much still to be learned about PFAS and the extent of their harm on the human body, attorneys pursuing PFAS claims must stay apprised of updates in the field. Changes to industry knowledge and acceptable risks dictated by public policy are constantly evolving, meaning arguments in the courtroom must adjust accordingly.