PFAS: A Growing Wave Of Litigation

• Published date: 12 December 2023
• Subject Matter: Energy and Natural Resources, Chemicals, Water
• Law Firm: Marten Law
• Author: Mr Victor Y. Xu and Danielle Shrader-Frechette

In the legal thriller Dark Waters, an erstwhile corporate defense attorney battles a company accused of dumping a then-obscure chemical called PFOA in a small town, where it kills scores of livestock and causes cancer and other disease in residents. The film's David and Goliath story ends when, after years of litigation, the company settles the cases for an eye-popping $671 million.

But PFOA (perfluorooctanoic acid) is not just the stuff of Hollywood. It is a real substance belonging to a class of thousands of chemicals known as PFAS (per- and polyfluoroalkyl substances), used in the United States and around the world for decades in countless products ranging from outdoor gear and electronics to food packaging and cosmetics. Litigation over PFAS has exploded in recent years as the potential health risks of certain PFAS are more closely scrutinized, testing methods improve, and regulatory interest grows.¹Bloomberg Law has reported that at least 50 lawsuits concerning PFAS have been filed in, transferred into, or transferred within U.S. federal courts since March 1.² Commentators now estimate that PFAS liability for some businesses may be in the billions of dollars.³ Although manufacturers of PFAS have been the predominant litigation targets thus far, businesses at every stage of commerce now face exposure and cannot afford to ignore the issue.

What Are PFAS?

Nicknamed "forever chemicals," PFAS have an astonishing range of consumer and industrial applications. Resistant to water, oil, heat, and time, PFAS owe their great utility to their incredible durability, attributable to their carbon-fluorine bonds, among the strongest bonds known in chemistry.⁴

But these same bonds are also proving to be a source of liability. In particular, certain PFAS analytes are reported to be highly resistant to breakdown, and are claimed to bioaccumulate in the human body and in animals, where, depending upon factors like chemical structure, dose, and type of exposure, some PFAS have reportedly been linked to conditions like cancer, altered immune and thyroid function, kidney disease, and reproductive and developmental harms.⁵

Early on, PFAS litigation focused on alleged contamination of water supplies by certain manufacturers through the use of PFOA and its chemical cousin PFOS, among the most widely used and studied PFAS.⁶ The first cluster of such cases'begun more than twenty years ago, and the inspiration for Dark Waters'has only recently begun to be resolved, but not before laying the groundwork for thousands of PFAS suits that followed.

The cases began in 1999 with a lawsuit initiated by a West Virginia farmer and his family who claimed their cattle were dying from water contamination linked to the use and disposal of PFOA. During the litigation, the farmer's counsel, Robert Bilott, sent a whistleblower letter to the EPA and other government regulators. The letter summarized documents suggesting that the defendant, DuPont, had known for years that PFOA was linked to cancer but had declined to switch to a potentially safer alternative and concealed PFOA water contamination.⁷

Bilott then filed a class action against DuPont on behalf of tens of thousands of people in West Virginia and Ohio, claiming injuries from drinking water contaminated by a plant that used PFOA.⁸ In 2004, the parties settled, with the defendant agreeing to pay cash and fund a medical monitoring program if an independent group of epidemiologists, the "C8 Science Panel," found links between PFOA and human health⁹'which the C8 Science Panel eventually did for several conditions, such as high cholesterol, ulcerative colitis, thyroid disease, testicular and kidney cancer, and pregnancy-induced hypertension.¹⁰ The findings of the C8 Science Panel continue to be used in PFAS-related litigation today.

In 2013, follow-on claims were centralized in an MDL in the Southern District of Ohio.¹¹ Following verdicts against the defendant in several bellwether trials, the parties settled the cases in 2017. Without conceding liability, DuPont and a spin-off agreed to pay approximately $671 million, and to make additional amounts available for potential future payments.¹² Subsequent cases were resolved for an additional $83 million.¹³

Current Litigation Landscape

In recent years, PFAS litigation has ballooned to target a dizzying array of new defendants, including paper companies,¹⁴ refineries,¹⁵ cosmetics businesses,¹⁶ packaging producers,¹⁷ retailers,¹⁸ and fast food chains.¹⁹ Cases span a broad range of plaintiffs and claims, including "traditional" litigation in which private parties seek injunctive relief like remediation and damages for alleged land and water contamination, along with government enforcement actions, claims for supposed false advertising of products containing PFAS, and challenges to agency rulemakings.

Contamination Cases. Similar to the first wave of PFAS litigation, private litigants continue to seek damages in connection with alleged PFAS contamination. Claims include negligence, trespass, nuisance, and products liability, along with actions under state and federal statutes. These cases present substantial financial risks to defendants. As just one example, late last year, the Court of Appeals for the Sixth Circuit upheld an Ohio jury's $40 million verdict for an individual cancer survivor, who claimed PFAS-contaminated water caused his illness.²⁰

As with other so-called toxic tort litigation, establishing or refuting a causal link between human harm and PFAS exposure is a central issue for contamination claims, where plaintiffs seek compensation for alleged health problems. In the Ohio case referenced above, the plaintiff relied extensively on the epidemiological findings of the C8 Science Panel to prove that PFAS caused his cancer.²¹ Related issues are also being litigated in the aqueous film-forming foam (AFFF) products liability litigation, an MDL pending in the District of South Carolina in which some 15,000 plaintiffs allege harms from alleged PFAS exposure linked to fluorinated firefighting foams.²² There, similar to the Ohio matter, the court has urged the parties to use the C8 Science Panel's findings as a starting point for discovery about the potential links between PFAS and human health.²³

Causal issues also arise in cases in which property owners seek remediation for alleged PFAS contamination. There, the causation element requires litigants to show the defendants were responsible, at least in part, for the alleged discharge. Litigants have had mixed success in doing so, particularly given the complex causal chain between potentially responsible parties. For example, in one recent case, the Southern District of New York granted in part a motion to dismiss claims brought by a...