Charleston, SCOn September 13, Marye Smith filed a perfluoroalkyl and polyfluoroalkyl lawsuit in the U.S. District Court for the District of South Carolina. Smith v. 3M Company alleges that Ms. Smith developed ulcerative colitis because of years of exposure to toxic PFAS in drinking water contaminated with aqueous firefighting foam.
Further, she alleges, 3M and other manufacturers knew that PFAS were dangerous to human health. Nonetheless, they failed to warn users and consumers of their fluorochemical products’ persistence, bioaccumulation, toxic properties, and the chemicals’ propensity to contaminate water supplies.
More than 5,000 lawsuits have been consolidated as multidistrict litigation in the South Carolina court for pretrial proceedings. As bellwether lawsuits (test cases) were scheduled to begin in mid-2023, settlement negotiations began in earnest.
Years of exposure; painful suffering
Ms. Smith lived at various locations in the New Jersey suburbs of Philadelphia between 1970 and the present. During this time, she drank and otherwise used water in which significant levels of PFOS and PFAS have been detected. The runoff of PFAS-laden aqueous firefighting foam from firefighter training and response exercises has reportedly contaminated drinking water in New Jersey and other communities, especially near military bases and airports. These toxic “forever chemicals” have been linked to liver damage, thyroid damage, obesity, fertility issues, several forms of cancer and ulcerative colitis.
Ulcerative colitis is a chronic inflammatory bowel disease that causes inflammation and ulcers in the digestive tract. It affects the innermost lining of the large intestine, including the colon and rectum. Symptoms include:
· pain in the abdomen, joints or rectum;
· bloating, bloody stool, constipation, diarrhea or an urgent need to defecate;
· anemia, fatigue, fever, or loss of appetite; and
· cramping, weight loss or scarring within the bile ducts.
The disease may significantly affect daily life, with side effects such as depression, isolation and a reluctance to seek medical help. It’s a miserable disease.
Ms. Smith’s lawsuit seeks relief on 11 counts:
· 3 related to various forms of products liability; including the manufacturers’ failure to warn consumers of the dangerous nature of the chemicals seeping into the water supply;
· 5 related to various forms of negligence; including the fraudulent concealment of the dangers of which the companies were aware;
· trespass and battery; and
· 2 related to the company’s infliction of emotional distress.
She seeks compensatory damages as well as punitive damages and restitution.
Complicated lawsuits
PFAS and PFOAS chemicals are everywhere. They do not hydrolyze, photolyze, or biodegrade under typical environmental conditions, and the chemicals seep into water systems. They have been used in military and civilian firefighting operations for decades, but have also made their way into consumer products, like non-stick cookware, and clothing. These “forever chemicals” are now so widespread that they are found in the blood of 97 percent of all Americans.
The lawsuits are everywhere, too. Those consolidated in the South Carolina District Court have been divided into three categories:
· personal injury plaintiffs, like Marye Smith, claiming injury from exposure to PFAS;
· actions filed by individual states by Attorney Generals for natural resource and other damages; and
· public water supplier plaintiffs seeking drinking water testing and remediation costs.
To date, the Court has set about selecting a group of 28 representative personal injury claims. These cases will include kidney and testicular cancer claims, thyroid disease claims and four ulcerative colitis claims. In addition, they will be limited to individuals alleging they were exposed to contaminated water near specific locations in Colorado and Pennsylvania. Ms. Smith’s lawsuit may not be in the first batch.
Complicated settlement negotiations
Realistically, neither 5,000 lawsuits nor 5,000 separate settlements are likely to happen. The terms of a recent $12.5 billion offer in a lawsuit brought by more than a dozen water authorities are telling.
To settle that lawsuit, the defendant manufacturers, including 3M, previously proposed a provision that would have allowed them to offset from the municipalities’ award any sums that 3M might later have to pay out to individual personal injury plaintiffs who prevail in lawsuits alleging harm caused by drinking toxic water. They appear to have abandoned that position in the latest settlement proposal.
The effort suggests, however, notwithstanding that the lawsuits have been divided into three categories for administrative ease, the manufacturers and marketers of PFAS and PFOA products may again pursue a more global settlement. The settlement negotiations that will follow the bellwether lawsuits ahead are likely to be very complex. Each group plaintiffs should be mindful of the possibility that their settlement sums may be reduced by offsets.
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