Defense lawyers didn't mince words when telling a room of plastics industry executives: Prepare for a wave of litigation with potentially “astronomical” costs. Speaking at a conference earlier this year, lawyer Brian Gross said the coming litigation could “far surpass the asbestos-related litigation, which is one of the most far-reaching corporate liability battles in U.S. history.”
Gross was referring to PFAS, the “forever chemicals” that have emerged as one of the major pollution problems of our time. Used for decades in countless everyday products, including cosmetics, take-out containers and frying pans, PFAS have been linked to serious health risks, including cancer. Last month, the federal government announced that several types of PFAS must be removed from the drinking water of hundreds of millions of Americans.
“Do what you can, while you can, before you get sued,” Gross said at a February session, recorded by a participant and reviewed by The New York Times. “Review your marketing materials and other communications with customers and suppliers and see if there's anything in those documents that could be problematic for your defense,” he said. “Get rid of those people and find the right witnesses to represent your company.”
A spokesman for Mr. Gross' employer, MG+M law firm, which defends companies in high-stakes lawsuits, declined to answer questions about Mr. Gross' comments, saying he couldn't discuss them.
A wide swath of the chemical, plastics and related industries are gearing up to fight a surge in litigation related to PFAS (per- and polyfluoroalkyl substances), one of roughly 15,000 multipurpose synthetic chemicals linked to serious health problems.
PFAS chemicals have been found almost everywhere scientists have looked: in drinking water, rain falling on the Great Lakes, and even snow in Antarctica. PFAS are thought to be present in the blood of nearly all Americans. Researchers have linked exposure to PFAS to testicular and kidney cancer, developmental delays in children, reduced fertility, liver damage and thyroid disease. Because the man-made chemicals have a long residual lifespan, scientists cannot determine with certainty how long they will take to break down.
PFAS-related lawsuits have already targeted U.S. manufacturers, including DuPont, its subsidiary Chemours, and 3M. Last year, 3M agreed to pay at least $10 billion to water utilities across the country that were seeking compensation for cleanup costs. Attorneys general from 30 states have also sued PFAS manufacturers, accusing them of causing widespread contamination.
But experts say the legal battle is only just beginning, as a wide range of companies that use PFAS in their products come under increasing scrutiny. This month, plaintiffs filed a class-action lawsuit against Bic, accusing the company of failing to disclose that some of its razors contain PFAS.
Vic said it does not comment on pending litigation and said it has worked on safety for many years.
The Biden administration has begun regulating the chemicals, for the first time requiring municipal water systems to remove six PFAS, and last month the Environmental Protection Agency designated two PFAS chemicals as hazardous under the Superfund Act, shifting the responsibility for cleaning up contaminated sites from taxpayers to polluters.
Both rules are expected to trigger new lawsuits by water utilities, local governments and others seeking reimbursement for cleanup costs.
“To say that a floodgate of litigation is opening up is an understatement,” said Emily M. Lamond, an environmental litigation attorney at the law firm Cole Shotz. “I think we're going to see more PFAS-related litigation, if you combine tobacco, asbestos and MTBE,” she said, referring to methyl tertiary butyl ether, a toxic former gasoline additive that contaminated drinking water. Combined, the three have total claims in the hundreds of billions of dollars.
Synthesized by DuPont chemists in the 1940s, PFAS were industrial wonders: incredibly durable compounds that resist water, stains, heat and oil. PFAS quickly became a mainstay in DuPont's Teflon-coated frying pans and 3M's Scotchgard fabric protectants. As powerful fire-extinguishing agents, they helped firefighters battle blazes. Today, they're found in a variety of everyday products, including microwave popcorn bags, shampoo, raincoats and firefighting foam.
But the very properties that make PFAS so valuable also prevent them from breaking down naturally in the environment. Once PFAS enter the environment from factories, products, and landfills, the chemicals begin to build up in water, air, and soil.
According to industry documents made public through litigation, manufacturers discovered adverse health effects from exposure to PFAS as early as 1961, but it wasn't until the early 2000s that public questions about their safety began to arise. In 2005, the EPA fined DuPont $10 million — the largest administrative penalty ever levied by the agency at the time — for failing to disclose the harmful effects of PFAS.
All of this is setting up a potential legal storm. Unlike tobacco, which only a small percentage of the population uses, “almost everyone in the United States has PFAS in their system,” says Eric Olson, senior strategic director of environmental health at the Natural Resources Defense Council. “And we're exposed to PFAS without our knowledge or consent, often by industries that knew how dangerous the chemicals were but didn't disclose it,” he says. “This opens up some very significant liability.”
Sandy Winn Stelt of Belmont, Michigan, was one of the earliest filers of the lawsuit. A year after she lost her husband to liver cancer in 2016, she discovered that the Christmas tree farm in front of her seemingly idyllic home was a dumping ground for PFAS-rich tannery waste from Wolverine Worldwide, makers of Hush Puppies shoes.
Wolverine was one of the first companies to license 3M's Scotchgard for waterproof shoes. Winn-Stelt's blood was tested and found to have PFAS levels hundreds of times higher than the legal limit. In 2020, she was diagnosed with thyroid cancer.
She sued Wolverine and 3M, reaching a settlement in 2021. Separately, about 2,000 local residents settled a class-action lawsuit against Wolverine. The area's water source remains contaminated with PFAS.
“The lawyers are right. This is going to be a big thing now that people are starting to hold companies accountable,” Winn Stelt said.
Wolverine declined to comment. 3M said it would “continue to address PFAS litigation by defending itself in court or through negotiated settlements.”
The outcome of future litigation will depend in large part on the evidence about the health risks of PFAS. There is widespread scientific consensus that certain PFAS chemicals are harmful. “The evidence is weighted,” says Linda Birnbaum, a toxicologist and former director of the National Institute of Environmental Health Sciences. “There are multiple studies by different researchers, with different populations.”
Max Sweatman, another partner at MG+M who presented with Gross at the industry conference in February, mentioned the study in his speech to the group. “There’s a ton of new science being produced,” he said. “It’s not in our best interest.”
Still, he says, some studies may be open to criticism. Getting the right experts to testify is crucial, he says: “If you pick the right experts, epidemiologists are always going to be the best experts in court.”
Sweatman's law firm said he was unavailable to comment on his remarks.
One challenge facing medical research is the sheer number of PFAS chemicals now entering the environment, each of which may have slightly different health effects, said Steph Tighe, associate dean at the University of Wisconsin's Nelson Institute for the Environment and an expert on the use of science in environmental protection and litigation.
“The problem is that it takes a long time for health effects to appear,” Tai said, adding that the only way scientists can assess those effects is through long-term studies. Researchers essentially have to look for what's called a “natural experiment,” Tai said, comparing people who have naturally low exposure to PFAS with people who have high exposure. That inevitably creates uncertainty.
The industry scored a major victory: Last November, the U.S. 6th Circuit Court of Appeals threw out a lawsuit that would have covered every Ohioan in a major case over PFAS exposure, ruling that the firefighters who sued had failed to prove that the PFAS found in their blood came specifically from the companies they sued.
3M phased out two of the most widely used PFAS chemicals, PFOS and PFOA, in the early 2000s, and DuPont stopped using PFOA in 2015. 3M has said it will phase out PFAS chemicals by the end of next year, but that depends on the company finding replacements.
“As the science and technology of PFAS, the expectations of society and regulators, and our own expectations evolve, so too have the ways we manage PFAS,” 3M said.
DuPont referred inquiries to Chemours, which was spun off into a separate company in 2015. Chemours declined to comment.
The long, difficult cleanup is beginning. President Biden's 2021 Infrastructure Act provides $9 billion to help communities deal with PFAS contamination, and the EPA says it will set aside $1 billion of that to help states with initial testing and treatment. Meanwhile, new types of PFAS are still being released into the environment, and scientists are learning more about them.