Litigation over 'forever chemicals' is growing: Is your company the next defendant?

Chemical plants and refineries near the Houston Ship Channel are seen next to the Manchester neighborhood in the industrial east end of Houston, Texas, U.S., August 9, 2018. REUTERS/Loren Elliott

December 7, 2022 - Litigation surrounding the production and use of per- and polyfluoroalkyl substances (PFAS) is ticking upward in state and federal courts in the United States. PFAS, which are manmade chemicals resistant to breaking down — why they're called 'forever chemicals' — have been the subject of studies claiming links between certain PFAS and health concerns. In this recent uptick of PFAS-related litigation, the breadth of plaintiffs at issue has grown, moving from owners of places where PFAS are manufactured, to owners of places, such as air bases, that merely use PFAS-containing materials.

Furthermore, injuries for which damages are sought have grown, branching out from an initial focus on the contamination of water supplies caused by the manufacture of PFAS to more recent cases that allege violations of consumer protection laws for failure to warn or mislabeling certain consumer goods that allegedly use PFAS in the product.

Finally, there is an expected new wave in PFAS litigation that includes personal injury claims from consumers using products that contain PFAS, fueled by the rapid development of science in toxicity assessments that highlight PFAS exposure, as well as an increasing number of lawsuits from local municipal entities, as evidenced by two recent lawsuits filed by the cities of Baltimore and Philadelphia.

As more data became available, concerns over the environmental impact of PFAS grew, particularly given their persistence in the environment and tendency to bioaccumulate. Bioaccumulation occurs where a substance becomes concentrated in an organism because the rate at which the organism eliminates the substance is slower than the rate at which it enters the organism. Research has claimed to link the presence of certain PFAS in animals to numerous health concerns, including cancer. The earliest PFAS cases centered around environmental contamination from manufacturers of PFAS, with the first case alleging that PFAS caused hundreds of cattle deaths.

In sum, PFAS litigation is rapidly expanding beyond the initial concerns for PFAS manufacturers locally in and around production facilities. Now, new research on the scope of PFAS use and environmental and health impacts is causing litigation concerns for many consumer products companies with PFAS-containing products through their distribution channels worldwide.

PFAS: a family history of ‘forever chemicals’ litigation

PFAS are a family of manmade chemicals designed for their resistance to breaking down under environmental conditions like heat or water exposure. Industrial and commercial operations keyed in on the benefits of using PFAS in their products and operations. The discovery ushered in widespread commercial production and use of PFAS after 1949.

As more data became available, concerns over the environmental impact of PFAS grew, particularly given their persistence in the environment and tendency to bio-accumulate. The earliest PFAS cases centered around environmental contamination from manufacturers of PFAS.

Beginning in the late 1990s and through the 2000s, individual lawsuits (and eventually a putative class action) were filed against DuPont alleging that the company's plant in Parkersburg, West Virginia, contaminated the environment and impacted thousands of water wells and public water supplies ( the "Parkersburg litigation"). (See, e.g., Leach v. E. I. du Pont de Nemours & Co., No. 01-C-698 (Wood County W. Va. Cir. Ct.)). In 2004, the company settled the lawsuit, which had grown to 80,000 plaintiffs, including from the neighboring state of Ohio, and the court approved the final settlement on Feb. 28, 2005. (Id.)

Additional personal injury claims and administrative complaints from regulatory agencies regarding allegations that the company failed to disclose known health concerns were filed and settled in the years following the initial settlement. (See, e.g., In re E. I. du Pont de Nemours & Co. Nos. TSCA-HQ-2004-0016, RCRA-HQ-2004-0016, and TSCA-HQ-2005-5001 (dockets for the administrative complaints by EPA in 2004/2005) and In re E. I. du Pont de Nemours & Co. C-8 Personal Injury Litigation, No. 2:13-md-2433 (S.D. Ohio 2013) (multidistrict personal injury litigation with most cases settled in 2017 settlement agreement)).

Overall, plaintiffs have received billions in settlement funds from the Parkersburg litigation.

The Parkersburg litigation opened the door for similar lawsuits throughout the country, by both private individuals alleging environmental harm from the manufacture of PFAS, as well as enforcement actions brought by regulators and governments relating to costs and responsibility over issues like PFAS in public water and wastewater treatment facilities.

Recent examples of settlements include an $850 million settlement in litigation filed by the state of Minnesota regarding alleged PFAS contamination in the Twin Cities area (Minnesota v. 3M, No. 27-CV-10-28862 (Minn. Dist. 2010)), a $113 million settlement of a lawsuit filed by municipalities in Michigan alleging a company's discharge of weatherproofing waste containing PFAS contaminated private water wells (Michigan Department of Environmental Quality v. Wolverine World Wide Inc., No. 1:18-cv-00039 (W.D. Mich. 2018)), and a $2 million lawsuit by a local water authority claiming discharges from a plant contaminated the water authority's water treatment system (City of Lake Elmo v. 3M Company, No. 16-2557 (D. Minn. 2016)).

New frontiers in PFAS litigation

Today, many lawsuits continue to focus on the environmental contamination caused by the use and manufacture of PFAS in industrial and commercial operations, while also branching out from traditional large-scale manufacturing plants to users of products containing PFAS. For example, lawsuits in 2021 and 2022 focused on responsibility over alleged contamination of soil and groundwater from airport operations, particularly in their use of firefighting foam. (See, e.g., Jackson Hole Airport Board v. 3M Company, No. 2:21-cv-3182 (D.S.C. 2021)). Federal military bases, like air bases, have also been the subject of lawsuits relating to PFAS contamination (Giovanni v. U.S. Dep't of the Navy, No. 16-04873 and 17-00765 (E.D. Pa. 2016)).

As more information regarding PFAS becomes available, plaintiffs are notably pushing into new frontiers. Specifically, plaintiffs in recent years have filed lawsuits relating to alleged use of PFAS in consumer products, including: cosmetics (Onaka v. Shiseido Americas Corp., No. 1:21-cv-10665 (S.D. N.Y. 2021)), fast food packaging (Clark v. McDonald's Corporation, 3:22-cv-00628 (S.D. Ill. 2022)), feminine products (Kanan v. Thinx Inc., No. 2:20-cv-10341 (C.D. Cal. 2021)), and personal hygiene products (e.g., dental floss) (Andrews v. P&G, No. 5:19-cv-00075 (C.D. Cal. 2019)).

Plaintiffs' primary allegations claim mislabeling of the products relating to the presence of chemicals; plaintiffs allege products generally marketed as free of harmful chemicals but which allegedly contain PFAS run afoul of laws relating to consumer protection.

Notably, an area that has yet to see significant development is consumer protection-related lawsuits that allege products expose consumers to harmful levels of PFAS. However, one recent example of this type of litigation relates to a highly specific product: fire retardant gear. As part of a multidistrict litigation relating to the manufacturing of firefighting foam and firefighting products, firefighters have filed lawsuits relating to alleged PFAS exposure from the very products meant to keep them safe, where plaintiffs allege the products caused elevated PFAS levels in their blood and claim a myriad of alleged health impacts as a result of PFAS exposure. (See, e.g., Marchetti et al. v. 3M Company et al., No. 1:22-CV-10251 (D. Mass. 2022)).

Another area yet to significantly develop but likely on the horizon involves shareholder suits regarding the use of PFAS, particularly in this age of ESG-related lawsuits that are already on the rise.

Key takeaways

Given the rapid development of science in both PFAS exposure, toxicity assessments, and propagation of new PFAS substances, it is likely the scope of PFAS litigation and liability will grow over the next several years.

Fueling this swell in litigation, the current administration under the Environmental Protection Agency has made regulating PFAS a key priority. Companies can expect new enforcement and compliance obligations involving the manufacture and use of PFAS and PFAS-containing products. State and other municipal entities are increasingly looking for contributions from PFAS manufacturers and distributors to fund remediation of public works and other related costs, as discussed in the Baltimore and Philadelphia lawsuits noted previously.

While the ultimate scope of PFAS litigation and liability is yet to be determined (some observing PFAS litigation and liability risk call it "the next asbestos"), growth of PFAS-related litigation is essentially guaranteed, especially as thousands of PFAS are currently known to exist, with many new chemicals being developed today to replace legacy PFAS with demonstrated adverse health effects.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias. Westlaw Today is owned by Thomson Reuters and operates independently of Reuters News.

Shannon E. McClure is a Philadelphia-based partner in Reed Smith's global commercial disputes group, where she serves as a first-chair trial attorney handling complex business disputes before federal and state trial and appellate courts. She also serves as national strategic and resolution counsel on large matters, including as national trial counsel to a global health care company and as court-appointed co-liaison counsel to defendants, in opioid litigations. She can be reached at smcclure@reedsmith.com.

Jennifer A. Smokelin is a Pittsburgh-based partner in Reed Smith's energy and natural resources group, who serves as co-chair of the firm's global ESG practice. She represents clients in a range of environmental and energy issues, including environmental civil enforcement and litigation matters, as well as regulatory and transactional issues for energy and manufacturing companies. She can be reached at jsmokelin@reedsmith.com.

Casey J. Snyder is a Pittsburgh-based associate in the energy and natural resources group of the Reed Smith, where he focuses his practice on various federal, state, and local environmental regulations, including assisting clients with regulatory issues affecting industrial and energy operations. He can be reached at casey.snyder@reedsmith.com.