The PFAS and the Furious: Litigation Trends in the Fire Sciences

Introduction

             Per- and polyfluoroalkyl substances (PFAS) are a class of over 7,000 manmade compounds that have formed the basis of litigation for the past 20 years and pose a substantial litigation risk for the foreseeable future.  PFAS are used in many products, but the fire science field has a long history with PFAS, especially perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), because these chemicals have been used in various fire-related products, including wire insulation, surface coating, and firefighting foam.  PFAS have been used in construction and firefighting foam, which means that firefighters battling flames in PFAS-containing buildings have been exposed to them, which in turns means that litigation has erupted surrounding potential health impacts of PFAS exposure.  

             PFAS usage goes beyond construction and firefighting.  Indeed, their use is so widespread that most Americans have had measurable exposure to PFAS.  And these chemicals do not break down in water or in soil, so they can stick around for a long time, which means that PFAS can cause actionable exposure years or even decades after their initial use.  PFAS’ durability and widespread usage has attracted numerous plaintiffs’ attorney from outside the fire science field

 The Present and Future of PFAS Litigation       

            Litigation surrounding PFAS generally began in the early 2000s.  PFAS plaintiffs generally allege that certain PFAS can cause health issues and environmental damage.  Exposed individuals, state attorneys general, and water utilities have filed lawsuits against PFAS manufacturers and local processors where PFAS have been found – typically in drinking water, groundwater, and soil.  These claims commonly include medical monitoring and personal injury based on exposure to PFAS in drinking water, diminished property values due to the presence of PFAS in soil and water wells, and the costs of remediating water and soil where PFAS have been detected.  Shareholders have also gotten into the action, alleging failure to disclose material information about potential PFAS liability.  Class actions and citizen suits are growing more common

             Although many cases are still pending, several high-value verdicts and settlements have attracted considerable attention.  In 2018, the Minnesota state attorney general obtained a $850 million settlement, and in 2020, the Michigan attorney general extracted a $113 million verdict on top of a $55 million settlement.  January 2021 saw a $4 billion agreement among DuPont, Chemours, and Corteva to share costs to settle PFAS lawsuits in multi-district litigation.  

             These courtroom successes have expanded PFAS litigation efforts and likely will continue to do so.  Plaintiffs’ attorneys have begun suing companies and industries along the product supply chain, such as those who processed materials that contain PFAS or made firefighting foams with PFAS supplied by others.  Currently, multidistrict litigation including approximately five hundred cases involving PFAS-containing aqueous film-forming foams (AFFFs) is pending in the United States District Court for the District of South Carolina

             Additionally, plaintiffs have sued under consumer protection statutes, claiming that PFAS manufacturers misrepresented their products as safe and seeking associated damages.  If, for example, a PFAS manufacturer claimed that its product was “compostable,” that claim could be considered false and misleading in violation of consumer protection laws.  For example, two plaintiffs recently sued an underwear manufacturer that had used CFAS while claiming that the underwear was environmentally friendly.

 Legislative and Regulatory PFAS Efforts

             Federal government action may further affect PFAS litigation.  Pending legislation would designate PFAS as a hazardous substance under CERCLA.  Additionally, the EPA announced that it “is beginning the necessary steps to propose designating PFOA and PFOS as “hazardous substances” through one of the available statutory mechanisms, including potentially CERCLA Section 102.  Either way, this designation would broaden federal authority compel potentially responsible entities to reimburse investigation and remediation costs.  Such entities could include owners or operators of sites where PFAS-containing materials were used, discharged, or disposed, and these entities could then face an increased risk of private litigation.

             Moreover, pending Senate legislation, if passed, would create a medical monitoring database for individuals allegedly exposed to PFAS from their drinking water supply.  The  PFAS Accountability Act would enable courts to award medical monitoring costs for “significant” exposure to PFAS in drinking water supplies.

             These legislative and regulatory efforts may affect private litigation.  Plaintiffs would likely cite a CERCLA designation as evidence that PFAS poses a hazard, thus lowering the bar for causation.  Legislation regarding drinking water could establish a de facto industry standard, which would impose liability on any defendant that fell short.  Federal action could inspire state and local governments to impose their own regulations, which would establish their own standards.

 Conclusion  

             These developments reveal four likely litigation trends that will endure or accelerate in this new era.

             First, PFAS manufacturers will continue to be sued. Litigation against PFAS manufacturers is unlikely to halt in the near future, given the recent settlements and novel legal theories.  

             Second, plaintiffs will pursue new companies and products in new industries using existing and adapted legal theories.  

             Third, the Biden administration’s regulatory initiatives may generate additional legal liability for current and former PFAS owners and operators of facilities.  This, in turn, may trigger more robust public and private lawsuits under environmental laws and regulations.  And companies identified by EPA may also commence recovery and contribution actions and other private litigation against third parties they allege should help share in the remediation costs.

             Fourth, the Biden Administration focus on PFAS will likely affect private litigation directly and indirectly. As a general matter, private plaintiffs, as well as local and state governments, may rely on and leverage the attention to PFAS at the federal level to add momentum and justification to their claims. And any congressional action to establish a medical monitoring framework might affect the application of state law and impact legal options and strategies.

             In sum, PFAS’ longevity, the increased settlements associated with PFAS litigation, and the Biden administration’s intensified focus on PFAS will likely spur additional and more ambitious PFAS litigation.  Consequently, companies at all levels of the supply chain and in industries that use, rely on, or otherwise come into contact with PFAS should work with their attorneys to evaluate, address, and mitigate these challenges.

Sean Griffin litigates contract and fraud cases in Virginia, Maryland, and the District of Columbia. He may be reached by email at sgriffin@dykema.com or by phone at (202) 906-8703.