Mich. lawsuit v. 3M, Wolverine re PFAS pollution proceeds

  • Claims of public and private nuisance survive motion to dismiss
  • Personal injury negligence claim trimmed under Michigan law

(Reuters) - Kent County, Michigan residents can proceed with claims that chemical maker 3M and shoemaker Wolverine World Wide contaminated their drinking-water wells with PFAS after a federal judge on Tuesday mostly denied a bid by the companies to toss them.

The residents say the companies created a private and public nuisance by knowingly polluting their environment with per- and polyfluoroalkyl (PFAS) substances, a family of chemicals contained in 3M's fabric treatment Scotchguard that Wolverine used at its Rockford, Michigan tannery.

3M spokesperson Sean Lynch said, "While we are disappointed with portions of the court's decision, this case is in its earliest stages." Lynch added that "3M acted responsibly in connection with products containing PFAS." The company is represented by lawyers at Mayer Brown.

Wolverine and its lawyers at Arnold & Porter Kaye Scholer did not immediately respond to a request for comment.

Esther Berezofsky, an attorney with law firm Motley Rice who co-represents the plaintiffs, said: "We are pleased with the Court's decision and are eager to move the case forward."

Named plaintiff Beverly Zimmerman sued in 2017 over the alleged pollution in Kent County, where she lives. Zimmerman claims she was exposed to PFAS by drinking water from her residential well.

At the tannery that closed in 2009, Rockford-based Wolverine used Scotchguard to make water-repellent shoes. The complaint says Wolverine discharged PFAS into waterways.

PFAS, nicknamed "forever chemicals" because they don't break down easily, have been used for decades in household and industrial products.

Michigan authorities have found high concentrations in Kent County wells of certain forms of PFAS that have been associated with various illnesses including cancer.

The complaint proposes a class of all Kent County residents who were exposed to PFAS through drinking water supplied by their residential wells, as well as those whose property has been "impaired" by PFAS contamination or risks such impairment.

In her ruling, U.S. District Judge Hala Jarbou in Lansing said she disagreed with the defendants' challenge to the plaintiffs' private nuisance claim because they have not provided "basic information" about the location of their homes or levels of PFAS in their drinking water. The plaintiffs' "voluminous allegations" sufficed to overcome a motion to dismiss, she said.

The judge did agree with the defendants that plaintiffs' negligence claims should be limited to allegations that their property has been contaminated, and exclude claims of personal injury through exposure to PFAS.

Jarbou said that Wolverine correctly argued that the plaintiffs' claims of negligence involving personal injuries cannot stand under laws of Michigan, which govern the case.

"Plaintiffs exposed to a toxic substance may only claim negligence if they have suffered an actual physical injury as a result," she said. "Plaintiffs have not alleged any present physical injury capable of sustaining a negligence claim," she added.

Regulatory activity around PFAS has been speeding up under the Biden administration, which has sought funding to clean up PFAS-contaminated industrial sites and to conduct research on the chemical’s effects, said environmental lawyer Robert Sussman, a former senior official at the Environmental Protection Agency.

The case is Zimmerman et al v. The 3M Company et al, United States District Court for the Western District of Michigan, No. 1:17-cv-01062.

For Zimmerman et al: Esther Berezofsky of Motley Rice

For The 3M Company: Daniel Ring of Mayer Brown

For Wolverine World Wide, Inc.: Michael Daneker of Arnold & Porter Kaye Scholer

Read more:

Enviros to EPA: Use novel power to get industry to pay for PFAS research

DuPont, Chemours, Corteva agree on $4 bln settlement for 'forever chemical'

IN BRIEF: 3M to pay Wolverine $55 mln, resolving PFAS lawsuit

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