Lawyers Predict Unprecedented Amount of PFAS Lawsuits

Santa Clara, CAChemical companies making PFAS, also known as ‘forever chemicals” are advised to “do what you can, while you can, before you get sued”, but the battle has already begun for some manufacturers. For instance, 3M agreed to pay water utilities nationwide at least $10 billion for cleanup costs and at least thirty state attorneys general have also sued PFAS makers for widespread contamination. If you aren’t familiar with the extent of PFAS damages, a recent The New York Times article is an eye-opener, to say the least, and the fallout will likely feed into PFAS litigation.

The class of chemical compounds known as PFAS is ubiquitous, so much so that they are supposedly in the bloodstream of 95% of Americans. They are found in the dust we breathe and the water we drink. (The floodgates opened when the EPA finally announced in April that PFAS must be removed from tap water.) Countless everyday items are made with PFAS, from cookware to clothing to cosmetics. And some manufacturers could drown in the floodgates, particularly those who knew way back in the 1960s about adverse health effects from PFAS exposure.

There’s DuPont, for instance, which purchased PFOA (short for perfluorooctanoic acid and one man-made chemical found in PFAS) from 3M in 1951 to make Teflon. If you saw the movie “Dark Waters” starring Mark Ruffalo, you’ll remember how DuPont contaminated an entire town. And this is not Hollywood. Fact: 3M advised DuPont to incinerate PFOA or send it to chemical-waste facilities. But over several decades, DuPont pumped hundreds of thousands of pounds of PFOA powder into the Ohio River. Then in the 1970s, DuPont discovered high concentrations of PFOA in the blood of factory workers at Washington Works but chose not to tell the E.P.A. It gets worse. In 1981, 3M found that ingestion of PFOA caused birth defects in rats and told DuPont, which then tested the children of pregnant employees in their Teflon division. Of seven births, two had eye defects. Again, DuPont chose not to make this information public. The EPA in 2005 fined DuPont $10million for failure to disclose PFAS’s adverse effects – the largest environmental settlement in history. Now that amount is a pittance.

Reuters reported late last year that lawsuits accusing major chemical companies (such as 3M, Chemours, Corteva and of course DuPont) of polluting U.S. drinking water with toxic PFAS chemicals led to over $11 billion in settlements in 2023, with experts predicting that new federal regulations and a growing awareness of the breadth of PFAS contamination in the U.S. will spur more litigation and settlements in the year ahead. Many cases, such as PFAS in firefighting foams, have been consolidated in multidistrict litigation (MDL) in South Carolina federal court. And Reuters also reported that 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.

One attorney told the NYT that there will be more PFAS-related litigation than combining tobacco, asbestos, and MTBE (Methyl tert-Butyl Ether added to gasoline in the late 1980s that contaminated drinking water). The trio led to claims surpassing hundreds of billions of dollars. However, unlike tobacco, which wasn’t used by everyone, “pretty much every one of us in the United States is walking around with PFAS in our bodies,” Erik Olson, senior strategic director for environmental health at the Natural Resources Defense Council, told the NYT. “And we’re being exposed without our knowledge or consent, often by industries that knew how dangerous the chemicals were, and failed to disclose that…That’s a formula for really significant liability.”