PFAS Exposure Lawsuits May Just Be The Tip of an Iceberg, Plastics Industry Warned

Plastics manufacturers like 3M and BASF are being warned that the thousands of per- and polyfluoroalkyl substances (PFAS) exposure lawsuits being pursued over side effects linked to the chemicals may just be the beginning of litigation the companies may face, which could eclipse the liability faced by tobacco and asbestos manufacturers.

The warning was presented earlier this year at an industry conference by defense lawyer Brian Gross, according to a report from the New York Times, which received a recording of the event from an unnamed source. Another environmental attorney told the publication the number of lawsuits filed over PFAS-related problems could be more than some of the largest litigations in U.S. history combined.

PFAS include a group of over 9,000 man-made substances, which are widely used to resist grease, oil and water. However, they are known to persist for decades, and researchers have identified a myriad of adverse health effects linked to the chemicals, including testicular cancer, kidney cancer, ulcerative colitis and other side effects.

Most of the current PFAS health concerns have stemmed from water contamination problems, caused by the large volumes of the chemicals in aqueous film-forming foam (AFFF), which have been used by the military and firefighters for decades to fight fuel-based fires. During training and response exercises, these PFAS chemicals have been dumped into the environment and local water supplies, particularly around military bases, airports and firefighter training locations, causing many communities to have dangerous levels of the chemicals in their drinking water.

3M Company, DuPont, Chemguard, Inc., Tyco Fire Products and other manufacturers of chemicals and fire safety products now face thousands of PFAS water contamination lawsuits brought by local water providers and individuals diagnosed with various types of cancer. The companies also face hundreds of firefighter cancer lawsuits over exposure to AFFF, and evidence uncovered during litigation has further heightened concerns about the long-term risks associated with use of the chemicals.

However, the lawsuits filed so far may be the beginning of a nearly never-ending flood of litigation over the coming years, and perhaps decades, as science continues to discover the full range of harm linked to PFAS exposure on consumers and the environment.

Given continuing concerns about the high levels of PFAS being found in water supplies nationwide, the EPA announced earlier this year that new national drinking water PFAS standards will be enforced, establishing limits for five different types of PFAS: perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), perfluorononanoic acid (PFNA), perfluorohexanesulfonic acid (PFHxS), and C3 Dimer Acid (HFPO-DA); also known as GenX, as well as any combination of two or more of these chemicals. The new rule sets a Maximum Containment Level for PFOA and PFOS at 4 parts per trillion, and 10 parts per trillion for PFNA, PFHxS and GenX chemicals.

The EPA estimates that the new limits will need to be addressed by between 6% and 10% of the U.S.’s 66,000 public drinking water systems. All such systems will have three years to complete initial monitoring and must inform the public of the levels of PFAS detected. When PFAS levels rise above the maximum containment levels, the system will have five years to reduce those levels to meet EPA standards.

Exceeding those standards could be a basis for numerous PFAS lawsuits filed in the future.

PFAS Exposure Lawsuit Settlements

Some companies, seeing the writing on the wall, have already agreed to pay billions of dollars to settle PFAS exposure lawsuits filed by individuals, communities and the states. However, they could continue to face similar claims as more information on the impacts of PFAS are revealed.

Late last month, BASF announced it had agreed to pay more than $316 million to resolve lawsuits brought by dozens of cities and municipalities nationwide.

The deal was reached months after a much larger PFAS settlement with 3M Company, which provides between $10.5 billion and 12.5 billion to cover remediation costs to remove the toxic chemicals from drinking water supplies nationwide.

Similar settlements have also been reached by DuPont, Chemguard and Tyco Fire Products.

June 2024 PFAS Exposure Lawsuit Update

All of the PFAS exposure lawsuits are currently centralized before U.S. District Judge Richard M. Gergel in the District of South Carolina, given common questions of fact and law presented.

To help the parties gauge how juries may respond to certain evidence and testimony that will be repeated throughout the remaining lawsuits, Judge Gergel issued a case management order last year, which directed the parties to prepare a group of 28 PFAS injury claims to serve as a bellwether pool, which will be prepared for a series of early trial dates.

The initial bellwether trials will focus on plaintiffs who say they were exposed to PFAS through drinking contaminated water, as opposed to direct exposure claims brought by firefighters.

The personal injury bellwether claims will include eight kidney cancer claims, eight testicular cancer claims, eight thyroid disease claims and four ulcerative colitis claims involving individuals exposed to contaminated water near Peterson Air Force Base, Colorado Springs Municipal Airport, the Willow Grove Naval Air Station Joint Reserve Base and the Naval Air Warfare Center in Warminster.

While the outcome of these early bellwether trials will not have any binding impact on other claims, it is expected that the amount of any PFAS exposure lawsuit payout awarded by juries may influence future firefighter cancer settlement negotiations to resolve the litigation.