The defense attorney didn’t mince words as he addressed a roomful of plastics industry executives. Be prepared for a wave of litigation that could result in “astronomical” costs. At a conference earlier this year, attorney Brian Gross said the upcoming lawsuit could “dwarf anything related to asbestos” in one of the largest corporate liability battles in U.S. history .
Mr. Gross was referring to PFAS, the “forever chemicals” that have become one of the major pollution problems of our time. PFAS have been used for decades in countless everyday products (cosmetics, to-go containers, frying pans) and have been linked to serious health risks, including cancer. Last month, the federal government said several PFAS must be removed from the drinking water of hundreds of millions of Americans.
“Do the best you can while you still can, before you get sued,” Gross said at the February meeting, according to an audio recording of the event reviewed by The New York Times and reviewed by a participant. “Review any marketing materials or other communications you have with customers or suppliers to see if there is anything in those documents that raises questions about your defence,” he said. “Weed out people and find the right witnesses to represent your company.”
A spokesman for Mr. Gross’s employer, law firm MG+M, which defends companies in high-stakes litigation, did not respond to questions about Mr. Gross’s remarks and said he could not discuss them.
Many chemical, plastics and related industries are bracing for a surge in lawsuits related to PFAS (per- and polyfluoroalkyl substances), a class of nearly 15,000 versatile synthetic chemicals linked to serious health problems.
PFAS chemicals have been detected almost everywhere scientists have looked: in drinking water, in rainwater on the Great Lakes, and even in Antarctic snow. They are thought to be present in the blood of nearly every American. Researchers have found that exposure to PFAS is linked to testicular and kidney cancer, developmental delays in children, reduced fertility, liver damage and thyroid disease. These man-made chemicals are so persistent that scientists cannot reliably determine how long it takes for them to break down.
PFAS-related lawsuits have been filed against U.S. manufacturers, including DuPont, its subsidiary Chemours and 3M. Last year, 3M agreed to pay at least $10 billion to water companies across the United States seeking compensation for cleanup costs. Thirty state attorneys general have also sued PFAS manufacturers, accusing them of causing widespread contamination.
But experts say the legal battle is just beginning. Companies that use PFAS in their products are increasingly coming under increasing scrutiny. This month, plaintiffs filed a class action lawsuit against Bic, accusing the razor company of failing to disclose that some of its razors contained PFAS.
Bic said it would not comment on pending litigation and said it had a long-term commitment to security.
The Biden administration has moved to regulate these chemicals, requiring municipal water systems to remove six PFAS for the first time. Last month, the EPA also designated two of the PFAS chemicals as hazardous substances under the Superfund law, shifting the responsibility for cleaning up contaminated sites from taxpayers to polluters.
The two provisions are expected to trigger a new round of lawsuits from water companies, local communities and others demanding cleanup costs.
“To say the floodgates are opening is an understatement,” said Emily M. Lamond, an attorney at Cole Shortz LLP who focuses on environmental litigation. “Looking at tobacco, asbestos, MTBE, for example, I think we’re still going to see more PFAS-related lawsuits,” she said, referring to methyl tert-butyl ether, a harmful gasoline additive that has contaminated drinking water. Together, the trio resulted in claims totaling hundreds of billions of dollars.
Synthesized by chemists at DuPont in the 1940s, PFAS is an industrial marvel: an extremely durable compound that resists water, stains, heat and grease. It quickly became a mainstay for DuPont Teflon nonstick pans and 3M Scotchgard fabric protectors. It is a powerful fire extinguishing agent that helps firefighters extinguish flames. Today, they are used in a variety of everyday items such as microwave popcorn bags, shampoo, raincoats and firefighting foam.
But the qualities that make PFAS so valuable also prevent them from breaking down naturally in the environment. As PFAS enter the environment from factories, products and landfills, these chemicals begin to accumulate in water, air and soil.
Industry documents released through the lawsuit show that manufacturers discovered the adverse health effects of PFAS exposure as early as 1961. In 2005, the U.S. Environmental Protection Agency fined DuPont $10 million for failing to disclose the adverse effects of PFAS, the largest administrative fine ever issued by the agency.
All of this sets the stage for a potential legal storm. Erik Olson, senior strategy director for environmental health at the Natural Resources Defense Council, said that unlike tobacco, which is used by only a small portion of the public, “almost every American has PFAS in their bodies.” “We are being exposed without our knowledge or consent, often by industries that know how dangerous these chemicals are but fail to disclose them,” he said. “It’s a formula of really big responsibility.”
Sandy Wynn-Stelt of Belmont, Miss., brought an early case. Her husband died of liver cancer in 2016, and a year later she discovered that the Christmas tree farm in front of her home, a seemingly idyllic setting, had become a dumping ground for PFAS-laden tanning waste produced by Wolverine World Wide, Hush Puppies shoe manufacturer.
Wolverine was one of the first companies to license 3M’s Scotchgard waterproof shoes. Ms. Wynn-Stelt had a blood test and found PFAS levels hundreds of times higher than normal. In 2020, she was diagnosed with thyroid cancer.
She sued Wolverine and 3M and settled in 2021. The region’s water sources are still contaminated with PFAS.
“Those lawyers are absolutely right. Now people are starting to hold companies accountable, and that’s going to be huge,” Ms. Wynn-Stelt said.
Wolverine declined to comment. 3M said it will continue to “resolve PFAS litigation by defending itself in court or through negotiated settlements.”
Much of the course of future litigation hinges on evidence about the health risks of PFAS. There is broad agreement in the scientific community that certain PFAS chemicals are harmful. “There’s a lot of evidence,” said Linda Birnbaum, a toxicologist and former director of the National Institute of Environmental Health Sciences. “Multiple studies conducted by different researchers in different populations.”
Max Swetman, another MG+M partner who attended an industry conference with Mr. Gross in February, spoke about the study. “There’s a lot of new science being created,” he said. “That’s not what’s best for us.”
However, he said some studies may be vulnerable to criticism. He said it was crucial to have the right experts testify. “An epidemiologist, if you find the right person, he will always be your best expert in a trial.”
He was unavailable for comment, according to Sweetman Law Firm.
One challenge facing medical research is the sheer number of different PFAS chemicals now entering the environment, each with slightly different health effects, said Steph Tai, associate dean and expert at the University of Wisconsin-Madison’s Nielsen Institute for the Environment. Applying science in conservation and litigation.
“The other thing is that the health effects take a long time to show up,” Dr. Day said, so the only way scientists can assess these effects is through long-term studies. Researchers essentially have to look for so-called “natural experiments,” comparing people who are naturally exposed to less PFAS with people who are exposed to more, she said. This inevitably creates some uncertainty.
The industry has already had some big wins. Last November, the U.S. Court of Appeals for the Sixth Circuit dismissed a lawsuit that would have covered every Ohio citizen in a major case involving PFAS exposure, ruling that a firefighter who filed the lawsuit failed to prove his PFAS has been found in the body.
3M phased out most use of PFOS and PFOA, the two most widely used PFAS chemicals, in the early 2000s, and DuPont stopped using PFOA in 2015. 3M said it will phase out production of PFAS chemicals by the end of next year. The company will also work to stop using them in its products, but that depends on the company finding replacements.
“As the scientific, technical, social and regulatory expectations for PFAS and the expectations we place on ourselves continue to evolve, so does the way we manage PFAS,” 3M said.
DuPont referred inquiries to The Chemours Company, which was spun off in 2015.
A long and difficult cleanup was about to begin. President Biden’s 2021 infrastructure law provides $9 billion to help communities address PFAS contamination, and the EPA said $1 billion of that will be set aside to help states with initial testing and treatment. Meanwhile, new PFAS are still being released into the environment. Scientists are working to learn more about them.
