PFAS Lawsuits Could Eclipse the Big Tobacco Settlement
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PFAS Lawsuits Could Eclipse the Big Tobacco Settlement

Aug 04, 2023

It was the dead cows on Wilbur Tennant’s farm that shaped most of Rob Bilott’s professional life. Tennant’s farm was located in Parkersburg, W. Va.; Bilott was—and remains—an environmental lawyer at the firm of Taft Stettinius & Hollister in Cincinnati. All had been well for Tennant until 1998, when half of his herd of 300 cows began to languish and die. The farmer and the lawyer never would have come together, but Bilott’s grandmother lived near Tennant, and a mutual friend suggested Tennant call her grandson for counsel.

Tennant had reason to suspect he needed the help of an environmental lawyer. His property was located up against a DuPont chemical plant, which was sending waste to an adjacent landfill; that, Tennant believed, was leaching contaminated water through a discharge pipe into the stream from which his cows drank. Bilott took the case, and in the summer of 1999, he filed the first ever lawsuit for damages resulting from the class of chemicals the plant was producing, known as PFAS (which DuPont was using to manufacture Teflon). Tennant and DuPont settled in 2001 for an undisclosed amount of money, but the case was just one in an avalanche of lawsuits that have come since.

“I’ve been practicing law since 1990,” says Bilott. “So I’m 33 years in and 25 of those 33 years have been focused on PFAS.”

He’s hardly alone. Currently, there are more than 15,000 claims that have been filed nationwide against DuPont—and its spinoffs Chemours and Corteva—along with 3M, the major manufacturers of PFAS in the U.S., according to Michael London, partner in the New York-based Law firm Douglas & London, which is handling most of the cases. A handful of smaller PFAS companies are also facing suits. So far, DuPont, Chemours, Corteva, and 3M have paid a total of nearly $11.5 billion in damages for PFAS contamination. But that number could grow considerably, even exceeding the more than $200 billion paid by Big Tobacco in the 1990s. And well it should, environmental lawyers argue.

Short for per- and polyfluoroalkyl substances, PFAS are also known as “forever chemicals”—because that’s pretty much how long they linger in the environment. PFAS exist in more than 12,000 forms, and are found in thousands of products, from food packaging, to clothing, shoes, cosmetics, contact lenses, wall paint, toilet paper, cookware, and even feminine hygiene products. That’s decidedly bad news: the exposure to certain levels of the chemicals have been linked by the Environmental Protection Agency (EPA) to a long list of health effects, including decreased fertility, high blood pressure in pregnant people, increased risk of certain cancers, developmental delays and low birthweight in children, hormonal disruption, high cholesterol, reduced effectiveness of the immune system, and more.

The ubiquity of PFAS affects us all. A study published in the International Journal of Environmental and Public Health, found PFAS in the blood of 97% of Americans tested. One 2022 study detected PFAS in raindrops—after clouds picked up the chemical from evaporated, contaminated water in oceans, lakes, and streams.

“There’s PFAS in the blood of penguins and polar bears,” says Scott Faber, senior vice president of the Environmental Working Group, an advocacy organization. “PFAS is so mobile. Once it gets into the air and the water, it goes everywhere.”

In early June, DuPont, Chemours, and Corteva got out from under a little bit of the civil litigation brought against them, reaching a $1.185 billion settlement with 300 local water systems that had sued the companies for the costs of cleaning and filtering their wells and aquifers. Three weeks later, 3M reached a much larger $10.3 billion settlement with 300 different water providers. Most, but not all, of the plaintiffs in both settlements are part of what is known as multidistrict litigation (MDL), in which suits alleging similar damages and identical defendants are consolidated for trial before a single judge in a single court. The 600 settled cases represent only a tiny share of the 15,000 claims in the MDL, being heard in the courtroom of Judge Richard Gergel, in the United States District Court for South Carolina.

Nobody pretends that even when the remaining cases in this MDL are settled, along with the hundreds more scattered around the country, the companies’ problems will be solved. Only 18 state attorneys general have filed suit for PFAS damages so far, leaving plenty more to step up to the legal plate; and only a small fraction of the 148,000 public water systems around the country have sought their own day in court. Finally, if the International Journal of Environmental and Public Health study is correct, there is no telling how many of the 97% of Americans who may be contaminated with PFAS will develop illnesses from the chemicals. Those who do would have standing to sue.

For many court-watchers, so much potential legal action by so many people calls to mind a remedy like the 1998 Tobacco Master Settlement Agreement, in which 52 state and territorial attorneys general agreed with the four leading cigarette manufacturers that the companies would, among other things, raise the price of cigarettes; limit advertising and promotion—especially to young people; ban payments for cigarette product placement in movies, TV, and theater; open previously secret industry documents; and dissolve industry trade groups. Worse, from the companies’ point of view, they were also required to pay the states a total of $206 billion in damages and contribute an additional $1.5 billion to an anti-smoking campaign. For the PFAS makers, that’s a scary precedent.

“Not 100% of Americans are walking around smoking tobacco,” says Erik Olson, senior strategic director for the Natural Resources Defense Council. “But basically 100% of Americans are walking around with PFAS in their bodies and none of them asked for that.”

Adds Bilott: “None of us even knew we were being exposed to these chemicals. We were all being involuntarily contaminated, so it’s potentially much larger in scope and scale [than the tobacco settlement.]”

If the cases pending against the PFAS manufacturers are relatively new, the history of the chemical is not. PFAS was first developed in the 1940s, with the most common—and most dangerous—of its varieties known as PFOA and PFOS. As a study published in early June in the Annals of Global Health reports, internal documents from 3M and DuPont show that the companies knew as early as 1961 that the chemicals were harmful to human health. At the time, PFOA and PFOS were known as C8—because of the eight carbon atoms that form their molecular spine—but whatever name they went by, they were bad news. A 1961 DuPont study warned that Teflon, which used PFOA, should be handled “with extreme care” and that “contact with the skin should be strictly avoided.” A 1970 study by the company found that C8 could be “highly toxic when inhaled and moderately toxic when ingested.”

The documents were obtained by Bilott in the process of discovery during three PFAS cases—1998’s Tennant vs. DuPont, 2001’s Leach vs. Dupont, and 2006’s Rowe vs. E.I. DuPont de Nemours Co. The documents were then donated to the library at the University of California San Francisco (UCSF), where the authors of the June paper gained access to them for their research. It was the Leach case, in which 3,500 West Virginians sued, seeking recovery for one or more of six diseases that they believed they had contracted from exposure to PFOS or PFOA—kidney cancer, testicular cancer, thyroid disease, high cholesterol, ulcerative colitis, and pre-eclampsia (or pregnancy-related hypertension)—that had the biggest impact. The story was told in a New York Times Magazine article in 2016 and turned into the film Dark Waters in 2019. That introduced many Americans to the PFAS problem for the first time, and sparked similar lawsuits from individuals, communities, and water providers nationwide.

“The rest of the country really didn’t know anything about PFAS until then,” says Bilott. “At that point, people started saying, ‘Hey, these chemicals aren’t just in the drinking water in West Virginia, they’re being found in drinking water supplies around the country.’ They started calling the EPA saying, ‘What’s the safe [drinking water] guideline [for PFAS?]’”

Four months after the Times piece was published, the EPA—which had never set such a standard for PFAS before—responded, and the conclusion they reached was alarming: Any concentration of PFOS or PFOA exceeding 70 parts per trillion (ppt) was dangerous. In 2022, the EPA lowered that number drastically, putting the safe PFOS and PFOA levels at just 0.02 ppt and 0.004 ppt respectively. One ppt is equivalent to one drop of water in 20 Olympic size swimming pools. “They’re just extremely toxic at extremely low doses,” says Olson.

The thousands of cases currently pending, to say nothing of the uncounted more that could be filed by individuals, will likely be broken down and consolidated into MDLs like the one being heard in South Carolina. “Everybody likes MDLs,” says London. “The defendants don’t have to have their CEOs and scientists and witnesses deposed scores of times by plaintiffs lawyers. And plaintiff’s lawyers get some efficiencies because we get to finally move forward with one judge in one place.”

Under the MDL process, one plaintiff out of the designated group is selected as a bellwether case, and the settlement or ruling in that complaint applies to all of the other ones in the collective suit. In the June DuPont settlement, the bellwether was Stuart, Fla., a city of 17,500 people on the state’s Atlantic coast.

“In the bellwether process, the judge asks the parties to nominate or designate cases that would be representative [of all of the others],” says London. “All of the parties agreed that the city of Stuart was most representative. It’s like the John Doe of cities. You don’t want an outlier. You don’t want a town that serves four people and you probably don’t want a New York City with 10 million people.”

Stuart had something else going for it too: it was alleging that most of its damages came from what’s known as aqueous film forming foam (AFFF), otherwise known as fire-fighting foam. Heavy with PFAS—originally the PFOA and PFOS varieties—the foam leaches into the ground after it’s been used, most frequently on military bases, at airports, and by firefighters either battling real blazes or in drills. Most of the other cities included in the settlement were also alleging contamination from AFFF—which is one of the most common sources of PFAS in soil and water.

“The cities pretty rapidly figured out that it was their own fire and rescue departments using firefighting foam that was responsible,” says Gary Douglas, London’s partner in the firm. “The vast majority, about 90-plus percent of PFAS contamination in the sewers, was the PFOS variety.”

The ubiquity of the foam will likely place it at the center of other MDLs as well—though consumers alleging injuries from the PFAS in thousands of commercial products could file suits too. And it won’t help that the chemical companies, knowing of the dangers PFOS and PFOA present, have replaced these in AFFF and other products with a C6 (six carbon atoms) PFAS formulation dubbed Gen X. It’s less toxic than PFOA and PFOS—but only by a little. According to the EPA, the safe limit for consumption of Gen X chemicals in drinking water is just 10 ppt.

“Instead of C8, these companies started making C6, C4, C9, C10,” says Bilott. “But they’re all part of the same PFAS family.”

All of this, plus existing C8 pollution, leaves the chemical companies with a long, litigious future ahead of them—and it’s a future they could have at least partly avoided if they’d just come clean about the dangers of PFAS early.

It was in 1980 that the EPA’s superfund law was enacted, designating nearly 800 hazardous substances that would be subject to regulation. By then, the PFAS manufacturers already knew that the chemicals were dangerous, as the study conducted with the UCSF documents shows. Had the companies been more transparent with their research, revealing to the government what their studies had found, PFAS would have been included in the superfund list, allowing the chemicals to be manufactured, but under the government’s eye, with limitations on how widely they were used and—as in the case of Tennant’s farm—dumped. That would have made for much less of a mess today, and much less civil liability. What’s more, under the superfund law, the cost of any clean-up may be borne partly by the manufacturers, but the states and the federal government can step in too, particularly if the contaminated area is a government-owned and -run facility like a military base.

“If the polluters had not hidden the truth from all of us, they would have been regulated in a way that might have insulated them from all the liability they’re having to face,” says Faber. “It’s one of those karmic kind of moments.”

Karma may have no legally recognized place in a court of law, but justice does, and public safety does, and compensating plaintiffs does. For the PFAS manufacturers, the best possible outcome might indeed be something like the tobacco master settlement, which would allow them to resolve at least some of their liability—the suits brought by the state attorneys general in particular—all at once.

“I’ve seen analogies [to the tobacco settlement],” says Bilott. “You’re looking at something that’s impacting millions of people worldwide. So this PFAS issue is probably even larger.”

That prospect is what likely keeps the corporate bosses up at night. The U.S. is a very big country with hundreds of millions of potentially injured plaintiffs. PFAS chemicals are forever; for the companies, the liability resulting from them could feel that way too.

Corrections: The original version of this story misstated the case that was the basis of the movie Dark Waters. It was Leach vs. DuPont, not Rowe vs. E.I. DuPont de Nemours Co. The story also misstated the year that the EPA set the safe drinking water levels for PFOS and PFOA at 0.02 ppt and 0.004 ppt respectively. It was 2022, not 2016.

Write to Jeffrey Kluger at [email protected].

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