Like many you who are in charge of environmental management issues, we do our best to keep a pulse on relevant issues (groundwater, remediation, environmental compliance, etc…). One topic that continues to dominate the headlines is per- and polyfluoroalkyl substances or PFAS.

Below are a couple recent developments with respect to PFAS.

PFAS Product Liability Cases

Lawyer John Gardella of CMBG3 Law wrote in an article (Are the Floodgates Open for PFAS Product Liability Cases?) that appeared in The National Law Review:

For the past three years, we have put forth the prediction that the PFAS litigation would evolve by expanding beyond lawsuits against PFAS manufacturers for personal injuries to lawsuits against manufacturing companies that utilize PFAS as a component of their products. This ‘next wave’ of PFAS product liability cases would significantly impact business interests at an incredible financial magnitude and puts at risk corporate finances at levels that could cause significant business interruption. A signal that this ‘next wave’ of products liability litigation may be here came late last week with the announcement that a product manufacturer settled a group of pending PFAS lawsuits – some of the damages going to environmental cleanup, but some of the damages going towards settlement with individuals for personal injury. This is an extremely significant PFAS development that deserves closer attention.

In our December 11, 2020 blog we shared information about how the PFAS litigation has expanded to PPE worn by firefighters.

The chart below (credited to the same author, John Gardella, CMBG3 Law) shows the reported environmental pollution cases related to PFAS.

Year of Settlement Amount State
2018 $850 million MN
2018 $4 million AL
2019 $2.7 million MN
2019 $35 million AL
2020 $55 million MI
2020 $113 million MI

DuPont Legal Settlements in West Virginia

The article goes on to discuss the DuPont/Parkersburg W.VA. case that was made famous by the movie “Dark Waters.” The movie is based on the book, Exposure: “Poisoned Water, Corporate Greed, and One Lawyer’s Twenty-Year Battle against DuPont” by attorney Robert Bilott.

C8 Science Panel

This case resulted in the $670,000,000 settlement.  Equally important from this was the development of the C8 Science Panel. “C8” is more recognizable as Perfluorooctanoic acid (PFOA). This Science Panel consisted of three epidemiologists chosen jointly by the parties to the legal settlement of the case between plaintiffs and DuPont.

Many are predicting that litigation involving PFAS will continue to expand (Photo by Tingey Injury Law Firm on Unsplash).

The Science Panel concluded that there was a “probable link to C8 exposure and: diagnoses of high cholesterol, uncreative colitis, thyroid disease, testicular cancer, kidney cancer, and pregnancy-induced hypertension.”

It was shortly after the C8 science panel findings that Attorney Robert Bilott and Dupont began litigating each person’s case one by one in West Virginia. Three cases went to verdict, each resulting in a plaintiffs’ verdict including: $1.6 million compensatory reward for a kidney cancer plaintiff; $5.1 million compensatory and $500,000 punitive award to a testicular cancer plaintiff; and $2.1 million compensatory and $10.5 million punitive reward for a testicular cancer plaintiff.

Shortly after the third verdict, Dupont settled all of the pending claims in the class action for $670 million. Since then, two other cases went to verdict against Dupont in Ohio – one was a hung jury and will be retried, the second resulted in a $50 million award to a testicular cancer plaintiff.

National Academies Looking at Current Evidence

An ad hoc committee appointed by the National Academies of Sciences, Engineering, and Medicine (the National Academies) will consider current evidence regarding human health effects of the most widely studied PFAS. Note, that the United States Environmental Protection Agency (EPA) is leading the national efforts on PFAS Research (see Research on Per- and Polyfluoroalkyl Substances).

Recommendations to Follow

The National Academies stated they will, …provide the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry (CDC/ATSDR) and the National Institutes of Environmental Health Sciences (NIEHS) an objective and authoritative review of current evidence regarding human health effects of those PFAS being monitored in the CDC’s National Report on Human Exposure to Environmental Chemicals.

They will also provide recommendations regarding potential changes to CDC/ATSDR PFAS clinical guidance including:

  • Options and considerations to guide decision-making for PFAS testing in a patient’s blood or urine.
  • PFAS concentrations that could inform clinical care of exposed patients.
  • Appropriate patient follow-up and care specific to PFAS-associated health endpoints for those patients known or suspected to be exposed to PFAS.

The first meeting and webcast was February 4th.

Dragun PFAS Resources

This is brief update on the quickly evolving PFAS landscape.  We continue to update our PFAS Resources Page, and we recently created a short video update: Regulating PFAS: An Update December 2020.

If you have any questions about PFAS, you can contact me or my colleague, Matt Schroeder at 248-932-0228.

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