The lawyer did not mince his words when he addressed a room full of plastics industry executives. Prepare for a wave of lawsuits with potentially “astronomical” costs. Speaking earlier this year, the attorney, Brian Gross, said the upcoming lawsuit could “eclipse everything to do with asbestos,” one of the most drawn-out premises liability battles in corporate history. United States.
Mr. Gross referred to PFAS, the “forever chemicals” which have emerged as one of the biggest pollution problems of our time. PFAS have been used for decades in countless everyday items — cosmetics, takeout containers, frying pans — and have been linked to serious health risks, including cancer. Last month, the federal government said there should be different types of PFAS removed from the drinking water of hundreds of millions of Americans.
“Do what you can, while you can, before you get charged,” Mr. Gross said during the February session, according to a recording of the event made by an attendee and examined by The New York Times. “Review any marketing materials or other communications you have had with your customers and suppliers, and see if there is anything in those documents that is problematic to your defense,” he said. “Call people out and find the right witness to represent your company.”
A spokesman for Mr. Gross' employer, MG+M The Law Firm, which defends companies in high-stakes lawsuits, did not respond to questions about Mr. Gross' comments and said he was not available to discuss them.
Much of the chemical, plastics and related industries are gearing up to battle a wave of lawsuits related to PFAS, or per- and polyfluoroalkyl substances, a class of nearly 15,000 versatile synthetic chemicals linked to serious health problems.
PFAS chemicals have been found almost everywhere scientists have looked: in drinking water, in water rain falling over the Great Lakeseven in Antarctic snow. It is thought that they are present in the blood of almost every American. Researchers have linked PFAS exposure to testicular and kidney cancer, developmental delays in children, reduced fertility, liver damage and thyroid disease. The man-made chemicals last so long that scientists have not been able to reliably determine how long it takes for them to break down.
PFAS-related lawsuits have already targeted manufacturers in the United States, including DuPont, its spinoff Chemours and 3M. Last year, 3M agreed to pay at least $10 billion to water companies in the United States that had requested compensation for cleanup costs. Thirty attorneys general have also sued PFAS manufacturers, accusing them of widespread contamination.
But experts say the legal battle has only just begun. More and more research is being conducted into a broader universe of companies using PFAS in their products. This month, plaintiffs filed a class action lawsuit against Bic, accusing the razor company of failing to disclose that some of its razors contained PFAS.
Bic said it does not comment on pending litigation, saying it has a long-standing commitment to safety.
The Biden administration has taken steps to regulate the chemicals, requiring municipal water systems for the first time to remove six types of PFAS. Last month, the Environmental Protection Agency also designated two of these PFAS chemicals as hazardous substances under the Superfund law, which shifts the responsibility for cleaning up contaminated sites from taxpayers to polluters.
Both rules are expected to trigger new legal action by water companies, local communities and others suing over cleanup costs.
“To say the floodgates are opening is an understatement,” said Emily M. Lamond, an attorney who focuses on environmental litigation at the law firm Cole Schotz. “Take tobacco, asbestos, MTBE, combine them, and I think we'll continue to see more PFAS-related lawsuits,” she said, referring methyl tert-butyl ether, a former harmful gasoline additive that contaminated drinking water. Together, the trio led to claims totaling hundreds of billions of dollars.
PFAS were an industrial wonder when Dupont chemists synthesized the material in the 1940s, a remarkably durable compound that was resistant to water, stains, heat and grease. It quickly became a mainstay in DuPont's Teflon nonstick pans and 3M's Scotchgard dust protector. It is a powerful fire extinguishing agent and helped firefighters battle the flames. Today they are used for everyday items as diverse as microwave popcorn bags, shampoos, raincoats and firefighting foam.
But the very properties that have made PFAS so valuable have also prevented them from breaking down naturally in the environment. As PFAS entered the environment from factories, products and landfills, the chemicals began to build up in water, air and soil.
Industry documents released through lawsuits show that manufacturers have experienced adverse health effects from PFAS exposure as early as 1961. But it wasn't until the early 2000s that public questions about their safety began to grow. In 2005, the EPA DuPont fined $10 millionat the time, the largest administrative fine ever imposed by the agency, for failing to disclose the adverse effects of PFAS.
All this has set the stage for a potential legal storm. Unlike tobacco, which is used by only a portion of the public, “virtually everyone in the United States is walking around with PFAS in our bodies,” said Erik Olson, senior strategic director for environmental health at the Natural Resources Defense Council. “And we are exposed without knowledge or consent, often by industries that knew how dangerous the chemicals were but didn't disclose it,” he said. “That's a formula for really significant liability.”
Sandy Wynn-Stelt of Belmont, Michigan, brought up one early case. A year after losing her husband to liver cancer in 2016, she discovered that the Christmas tree farm in front of her home, which seemed such an idyllic setting, had been a dumping ground for PFAS-laden tannery waste from Wolverine World Wide. the maker of Hush Puppies shoes.
Wolverine was one of the first to license Scotchgard from 3M for its waterproof shoes. Ms Wynn-Stelt had her blood tested and discovered that the PFAS levels were hundreds of times higher than the norm. In 2020, she was diagnosed with thyroid cancer.
She sued Wolverine and 3M and reached a settlement in 2021. Separately, nearly 2,000 local residents settled a class action lawsuit against Wolverine. The region's water source remains contaminated with PFAS.
“Those lawyers are absolutely right. This is going to be huge as people start holding companies accountable,” said Ms Wynn-Stelt.
Wolverine declined to comment. 3M said it “continues to address the PFAS lawsuits by defending itself in court or through negotiated resolutions.”
Much of the outcome of future lawsuits depends on the evidence about the health risks of PFAS. There is broad scientific consensus that certain PFAS chemicals are harmful. “There's a lot of evidence,” says Linda Birnbaum, a toxicologist and former director of the National Institute of Environmental Health Sciences. “Multiple studies by different researchers and in different populations.”
Max Swetman, another MG+M partner who presented Mr. Gross at the February industry conference, addressed the research in his remarks to the group. “There's a lot of new science being created,” he said. “This is not the best for us.”
Still, some of the research may be vulnerable to criticism, he said. It was critical that the right experts testify, he said. “Epidemiologists, if you get the right ones, will always be your best expert in litigation.”
Mr. Swetman was unavailable to comment on his remarks, according to his law firm.
One challenge for medical research lies in the vast number of different PFAS chemicals that have now entered the environment, each of which may have slightly different health effects, says Steph Tai, associate professor at the University of Wisconsin's Nelson Institute for Environmental Studies and an expert. in the use of science in environmental protection and litigation.
“The other thing is that it takes a long time for health effects to become apparent,” said Dr. Tai, so the only way scientists can assess those effects is through long-term studies. Researchers must essentially look for so-called “natural experiments,” she said, comparing people who are naturally less exposed to PFAS with those who are more exposed. This inevitably leads to some uncertainties.
The industry has had some big wins. Last November, the U.S. Court of Appeals for the Sixth Circuit dismissed a lawsuit that would have covered every Ohio citizen in a major PFAS exposure case, ruling that a firefighter who filed the lawsuit had failed to prove that the PFAS got into his blood specifically from the companies he sued.
3M phased out most uses of two of the most commonly 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, although that is dependent on finding alternatives.
“As the science and technology of PFAS, societal and regulatory expectations, and our expectations of ourselves have evolved, so too has the way we manage PFAS,” 3M said.
DuPont referred questions to Chemours, the company that was spun off in 2015. Chemours declined to comment.
A long and difficult cleaning begins. President Biden's 2021 infrastructure bill provides $9 billion to help communities address PFAS contamination, and the EPA has said $1 billion of that money will be set aside to help states with initial testing and treatments . Meanwhile, new types of PFAS continue to enter the environment. Scientists are trying to find out more about it.