Home News Lawyers warn plastics makers: Get ready for ‘expensive’ PFAS lawsuits

Lawyers warn plastics makers: Get ready for ‘expensive’ PFAS lawsuits

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Defense attorneys didn’t mince words as they addressed a room full of plastics industry executives. Get ready for a wave of lawsuits that could cost “astronomical amounts of money.” Attorney Brian Gross told a conference earlier this year that the upcoming litigation could be “bigger than anything that’s ever been done with asbestos,” making for one of the biggest corporate liability battles in U.S. history.

Mr. Gross was referring to PFAS, “Forever Chemicals” It has become one of the major pollution issues of our time. For decades, PFAS have been used in countless everyday products — cosmetics, takeout containers, frying pans — and have been linked to serious health risks, including cancer. Last month, the federal government said several types of PFAS must be banned. Removed from drinking water for hundreds of millions of Americans.

“Do everything you can before you get sued, do everything you can,” Mr. Gross said at the February meeting, according to a recording of the event recorded by a participant and reviewed by The New York Times. “Review any marketing materials or other communications you have with your customers, your suppliers, and see if there’s anything in those documents that would be detrimental to your defense,” he said. “Screen out the right people, find the right witnesses to represent your company.”

A spokesman for Gross’s law firm, MG+M, which specializes in defending companies in high-stakes litigation, did not respond to questions about Gross’s remarks and said he could not discuss them.

Numerous chemicals, plastics and related industries are bracing for a surge in litigation related to PFAS, also known as per- and polyfluoroalkyl substances, a class of nearly 15,000 versatile synthetic chemicals that have been linked to serious health problems.

PFAS chemicals, short for per- and polyfluoroalkyl substances, have been detected almost everywhere: in drinking water, Rain over the Great LakesEven though Antarctic SnowThey are considered Almost every American has it in their blood.Researchers believe exposure to PFAS can cause testicular and kidney cancer, developmental delays in children, reduced fertility, liver damage and thyroid disease. These man-made chemicals are so long-lived that scientists can’t determine exactly how long it takes them to break down.

PFAS-related lawsuits have been filed against U.S. manufacturers including DuPont, its spinoff Chemours and 3M. 3M agrees to pay Water utilities across the U.S., which lost at least $10 billion, have sought compensation for cleanup costs. Attorneys general from 30 states have also sued PFAS manufacturers, alleging they caused widespread contamination.

But experts say the legal battle is just beginning. PFAS are coming under increasing scrutiny as more companies use them in their products. This month, plaintiffs filed a class-action lawsuit against Bic, alleging the razor company failed to disclose that some of its razors contained PFAS.

Bic said it does not comment on pending litigation and said it has a long-term commitment to safety.

The Biden administration has begun regulating chemicals, requiring municipal water systems to Removes six PFASLast month, the U.S. Environmental Protection Agency also listed two of the PFAS chemicals as As hazardous substances Under the Superfund law, responsibility for cleanup of contaminated sites is shifted from taxpayers to polluters.

The two regulations are expected to trigger a new round of lawsuits from water companies, local communities and others seeking compensation for cleanup costs.

“To say the floodgates are opening is an understatement,” said Emily M. Lamond, an attorney at Cole Schotz who focuses on environmental litigation. “I think we’re still going to see more PFAS-related litigation, taking tobacco, asbestos, MTBE as examples,” she said, referring to Methyl tert-butyl Ether, a harmful gasoline additive that once contaminated drinking water. Together, the three incidents have led to claims totaling hundreds of billions of dollars.

In the 1940s, chemists at DuPont created PFAS, an industrial miracle of extremely durable compounds that repel water, stains, heat, and oil. It soon became the main ingredient in DuPont Teflon nonstick pans and 3M Scotchgard fabric protector. It is a powerful fire extinguishing agent, helping firefighters put out flames. Today, they are used in a variety of everyday products, such as microwave popcorn bags, shampoo, raincoats, and fire-fighting foam.

But the same properties that make PFAS so valuable also prevent them from naturally breaking down in the environment. As PFAS enter the environment from factories, products and landfills, the chemicals begin to accumulate in water, air and soil.

Industry documents released via litigation show manufacturers found adverse health effects from PFAS exposure As early as 1961But it wasn’t until the early 21st century that the public began to increasingly question its safety. In 2005, the U.S. Environmental Protection Agency DuPont fined $10 millionThis is the largest administrative penalty the agency has ever levied for failing to disclose the adverse effects of PFAS.

All of this sets the stage for a potential legal firestorm. Unlike tobacco, which is used by only a small percentage of the population, “PFAS are in almost every one of us,” said Erik Olson, senior strategic director for environmental health at the Natural Resources Defense Council. “And we’re exposed to these chemicals without our knowledge or consent, often by industries that knew how dangerous they were but didn’t disclose,” he said. “It’s a very significant liability formula.”

An early case was brought by Sandy Wynn-Stelt of Belmont, Michigan, who lost her husband to liver cancer in 2016. A year later, she discovered that the Christmas tree farm in front of her home, once an idyllic setting, had become a dumping ground for tanning waste laced with PFAS by Wolverine World Wide, the maker of Hush Puppies shoes.

Wolverine was one of the first companies to receive approval to use 3M Scotchgard waterproof footwear. Ms. Wynn-Stelt had her blood tested and found PFAS levels hundreds of times higher than normal. In 2020, she was diagnosed with thyroid cancer.

She sued Wolverine and 3M, reaching a settlement in 2021. Separately, nearly 2,000 local residents filed a class-action lawsuit against Wolverine. The area’s water sources remain contaminated with PFAS.

“What those lawyers said is absolutely right. Now people are starting to hold companies accountable, and that’s going to have a huge impact,” Ms. Wynn-Stelt said.

Wolverine declined to comment. 3M said it will continue to “resolve PFAS litigation by either defending itself in court or through negotiated settlements.”

The direction of future litigation will depend largely on the evidence of PFAS health risks. There is widespread scientific consensus that some PFAS chemicals are harmful. “The evidence is overwhelming,” said Linda Birnbaum, a toxicologist and former director of the National Institute of Environmental Health Sciences. “There are multiple studies by different researchers looking at different populations.”

Max Swetman, another MG+M partner who attended the February industry conference with Gross, spoke about the research in his address to the plenary session. “There’s a lot of new science going on right now,” he said. “It’s not the best thing for us.”

Still, he said, some studies could be vulnerable to criticism. Getting the right experts to testify is crucial, he said. “If you get the right epidemiologists, they’re always your best experts at trial.”

Mr. Sweetman was unavailable for comment, according to his law firm.

One challenge for medical research is the sheer number of PFAS chemicals now entering the environment, each with slightly different health effects, said Steph Tai, associate dean of the UW Nelson Institute for the Environment and an expert in applied science for environmental protection and litigation.

“The other thing is that health effects take a long time to show up,” Dr. Tai said, so the only way scientists can assess those effects is through long-term studies. She said researchers have to look for so-called “natural experiments,” comparing people who have naturally less exposure to PFAS to those who have more. That inevitably leads to some uncertainty.

The industry has had some big wins. Last November, the U.S. Court of Appeals for the Sixth Circuit dismissed a major PFAS case involving all citizens of Ohio, ruling that a firefighter who had brought the lawsuit had failed to prove that the PFAS found in his blood actually came from the company he was suing.

3M phased out the two most widely used PFAS chemicals, PFOS and PFOA, in the early 2000s, while DuPont also stopped using PFOA in 2015. 3M has said it will phase out PFAS chemicals by the end of next year, though that depends on whether the company can find replacements.

“As the science and technology of PFAS, societal and regulatory expectations, and our expectations of ourselves continue to evolve, so too does how we manage PFAS,” 3M said.

DuPont referred inquiries to Chemours, which was spun off from DuPont in 2015. Chemours declined to comment.

A long, difficult cleanup is about to begin. President Biden’s 2021 infrastructure bill provides $9 billion to help communities address PFAS contamination, and the EPA says $1 billion of that will go 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.

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