By Seth Mansergh & Nancy Mortvedt
Manufacturers of aqueous film forming foams (AFFF) have been attempting to reduce their liability from the presence of per- and polyfluoroalkyl substances (PFAS) in their products for many years. The health effects from PFAS exposure are getting a lot of public attention as the EPA and states move forward with setting limits on PFAS in drinking water. The manufactures of PFAS and AFFF have been arguing in court filings that the science on the health effects of PFAS are overblown and alternatively they should not be liable because of the “government contractor defense”. However, two recent court rulings are not in favor of the manufacturers who were well aware of the health risks associated with PFOA and PFOS.
Challenges to MCLs
In June 2022, the Environmental Protection Agency (EPA) announced new health advisories for two most commonly found forms of PFAS – PFOA and PFOS – based on new science recognizing a link between some negative health effects and exposure to these manmade substances in water at near-zero concentrations. New EPA studies indicated, among other concerns, that children with levels of PFAS in their blood previously considered low, were not responding to common childhood vaccinations, in particular those for diphtheria and tetanus.
Health concerns over PFAS exposure are by no means new. In 2006, to take just one example, an independent science panel, which had spent six years studying the effects of PFOA, linked the chemical to kidney cancer, testicular cancer, thyroid disease, high cholesterol, ulcerative colitis, and preeclampsia. Going back even further, studies in the 1970s by DuPont, who used these chemicals in a variety of consumer and industrial products, indicated that PFOA was bioaccumulating in the blood of its factory workers, meaning their bodies’ tissue was absorbing the substance faster than it can be eliminated—a significant risk factor for adverse health effects like cancer and other chronic illnesses. To combat these risks from exposure, the EPA and many states are considering enacting, or already have enacted, maximum contaminant levels (MCLs) in drinking water. New York set MCLs for PFOA and PFOS at 10 parts per trillion (ppt) but had their MCLs challenged in court.
In June of 2022, the State of New York Supreme Court of the County of Albany rejected the effort by the 3M Company to invalidate the New York Department of Health’s MCL of 10 parts per trillion for certain kinds of PFAS contamination in drinking water supplies. 3M argued the MCL was invalid because it had been enacted on insufficient science, and was “tantamount to a regulatory guess.” Even though New York’s MCL is largely consistent with the regulatory limits that other states, the court didn’t even need to get into this analysis. Instead, the court ruled 3M could not show an injury from setting this regulation. Among other reasons, the court found there was no additional potential liability from setting a PFAS MCL, since lawsuits on groundwater contamination do not require an MCL to be viable. The reasoning in this ruling may be helpful to other states should they face administrative challenges like this one. But more importantly it reiterates the rule in many jurisdictions that a water provider may be injured by PFAS, and bring a lawsuit against the manufacturers even if their state has not set an MCL.
Court Finds Manufacturers’ Defense Unsubstantiated
A nationwide multidistrict litigation (MDL) over PFAS contamination, is making progress in a South Carolina federal district court. Made up of over 2500 cases, this MDL is known as MDL-2873 In re: Aqueous Film Forming Foams Products Liability Litigation. In an effort to limit the liability from all these cases, 3M and codefendants filed a motion for summary judgment arguing the “government contractor defense” provided them immunity from the claims.
On September 15, 2022, Judge Richard Mark Gergel of the United States District Court for the District of South Carolina, who is overseeing the MDL, denied 3M’s latest attempt to evade liability. Defendants argued the government’s design specifications for AFFF meant they should not be liable for the harm caused by PFAS that it manufactured for use in AFFF. However, the Court denied this defense, explaining at the outset that the Defendants, “as manufacturers of C8-based [PFAS] products at issue in this litigation, had significantly greater knowledge than the government about the properties and risks associated with their products and knowingly withheld highly material information from the government.” This ruling is a win for all plaintiffs, but especially water provider plaintiffs, since they are the earliest group to have one of their cases go to trial.
The water provider cases are one subset of approximately 2,500-plus cases pending in the MDL, but due to the similarities among the claims, the court has selected the water provider cases as bellwether cases, meaning they will be tried first.
Of the water systems involved in the MDL, three bellwethers were chosen as test cases. Bellwether trials are used to work through common legal and factual issues that apply to the majority of the other similarly situated cases. If test cases receive favorable results, the larger pool of plaintiffs can proceed forward more efficiently, often creating a “domino effect” of settlements or court judgements.
SL Environmental Law Group (SL), in partnership with four other law firms, and as members of plaintiff leadership, represents water and wastewater agencies, as well as states, sovereigns and other plaintiffs who have suffered property damage. The bellwether water provider cases are now in the discovery phase, with expert witness depositions underway and pretrial motions to begin in the fall. A trial date is currently scheduled for June 2023.
Not Too Late to Join
Litigation over PFAS contamination is moving forward as demonstrated by the favorable rulings for water systems in the MDL-2873 and New York. But it is not too late for systems that have PFAS in their water and want to bring a lawsuit against the manufacturers of these chemicals. Additional plaintiffs are still able to join MDL-2873. With good representation the process is relatively painless. Additionally, many representing law firms, like SL take cases on contingency, so the client has no upfront costs and only pays if a settlement or trial verdict is won. With little downside to water providers to joining the MDL, and the quickly approaching first bellwether trial, now is the time to consider your legal options.
For more information about MDL-2873 contact SL Environmental Law Group at slenvironment.com.
Seth Mansergh is an attorney at SL Environmental Law Group. Nancy Mortvedt is director of client engagement at SL Environmental Law Group.
