Manufacturers Face Uphill Battle in PFAS Litigation

The recent cases are part of a long chain of lawsuits related to PFAS contamination. Currently, about 2500 cases are involved in MDL-2873, In re: Aqueous Film Forming Foams Products Liability Litigation.

Recent Court Rulings in PFAS-Related Multidistrict Litigation

Codefendants in these cases recently filed a motion for summary judgment. They argued that the government contractor defense immunizes them from PFAS-related liability. The defendants claimed that they met the government’s specifications for AFFF manufacturing. Therefore, the court should not hold them liable for the harm caused by the PFAS involved in that manufacturing process, the defendants argued.

In September 2022, however, the U.S. District Court for the District of South Carolina rejected this argument. The court held that as manufacturers of AFFFs and the PFAS involved in the process, the defendants “had significantly greater knowledge than the government about the properties and risks associated with their products and knowingly withheld highly material information from the government.”

Other cases involving PFAS contamination are also making their way through the courts. In 2022, for instance, 3M argued that the New York Department of Health’s 10 parts per trillion limit for PFAS in drinking water was “tantamount to a regulatory guess” and should not be enforced. The New York Supreme Court for Albany County, however, rejected this argument. The court stated that 3M couldn’t show it was injured by the regulation.

Health Effects of PFAS and the EPA’s Involvement

Health effects linked to PFAS exposure have been a subject of concern for many years. In the 1970s, research by DuPont found that PFAS was accumulating in the bodies of workers exposed to the chemical. This situation can increase the risk of cancer and other serious health issues over time. In 2006, a study connected PFAS exposure to a number of ills. The listed illnesses included various types of cancer, thyroid disease, high cholesterol, ulcerative colitis, and preeclampsia during pregnancy.

Recent research by the Environmental Protection Agency (EPA) indicates that children with detectable levels of PFAS in their bodies may not respond normally to childhood vaccinations, including vaccines for diphtheria and tetanus. Failure to respond normally to these vaccines may leave children vulnerable to contracting the targeted diseases.

In response to this and other research, the EPA issued advisories for common forms of PFAS, including PFOA and PFOS. The EPA and several states have also proposed or adopted rules regulating the amount of PFAS that may be present in municipal water sources.

Moving Forward: A Look at Future PFAS-Related Litigation

The rulings in favor of the plaintiffs in the defendants’ motions for summary judgment indicate that the court will not allow the defendants to evade liability simply because they followed government instructions in the manufacture of AFFFs. Rather, both parties will need to dig into the technical and scientific details of these claims in order to make their respective arguments.

Attorneys will likely call upon expert witnesses to discuss the technical details of these claims. Topics ripe for expert witness discussion include the effects of PFAS on human health, the link between PFAS exposure and particular diseases, and the levels of PFAS in water supplies that constitute safe or unsafe amounts of exposure.

The recent cases served as bellwether cases in the AFFFs-related MDLs. However, the MDL remains open to additional contaminated water system plaintiffs. The issues in these cases will continue to be litigated.