PFAS Litigation: Can You Sue for Exposure to Forever Chemicals?
This article will explain why PFAS, also known as “forever chemicals,” is getting attention worldwide, with many mass torts relating to its use, pollution, and human health risks.
We will also explain the development of PFAS litigation in the U.S. and how you can protect your rights if exposed to the adverse effects of forever chemicals.
Understanding PFAS and Their Impact
Per- and polyfluoroalkyl substances (PFAS) are commonly found in many non-stick consumer products, cookware, water-resistant clothing, and food packaging.
They are also called “forever chemicals” as they are exceptionally long-lasting and slow to break down. For that reason, they found their way into water and soil, but also fish, animals, and eventually—our blood.
The Health Impact of PFAS
Unfortunately, PFAS are tied with a plethora of severe medical conditions, ranging from various types of cancer, kidney and liver diseases, fertility and pregnancy problems, and more.
Of course, using PFAS-containing products such as Teflon plates won’t automatically lead to cancer—the type and the amount of PFAS exposure matters, too. Additionally, PFAS are a large class of substances, and not every chemical has the same effect.
However, long-term exposure to high amounts of certain PFAS carries a health risk, especially if ingested via contaminated ground water or soil.
Therefore, most PFAS litigation cases are tied to situations where a chemical manufacturing plant pollutes its environment, causing a severe health risk to the local population.
How The Government Is Responding to PFAS
In the U.S., the Environmental Protection Agency is at the forefront of the PFAS battle, trying to address the contamination and introduce stringent regulations regarding these chemicals.
The most significant breakthrough came with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), where two types of PFAS (PFOS and PFOA) were highlighted as particularly dangerous, and their use and release were firmly regulated.
CERCLA also established the PFAS Enforcement Discretion and Settlement Policy to establish enforcement action against entities responsible for pollution.
However, the EPA also oversees The National Primary Drinking Water Regulations (NPDWR), which establish tolerance levels of PFAS in drinking water and provide clear guidance on the chemicals, testing, and advisories for water quality, informing the public and stakeholders.
However, litigation is the field where most people who are exposed to PFAS seek justice.
PFAS in the Courts: Litigation Trends and Notable Cases
PFAS litigation is complex, primarily due to the number of affected people and the fact that the defendant companies have the resources to litigate.
So far, a few major chemical companies have agreed to pay significant class settlement amounts:
- DuPont – $400m settlement;
- Chemours – $592m settlement;
- Corteva – $193m settlement.
However, 3M, another major chemical company, has settled for more than 10 billion dollars for water contamination, making it the most significant PFAS settlement so far.
Due to the number of affected citizens and potential plaintiffs, these cases are usually handled through Multi-district Litigation (MDL). That type of mass tort not only puts less pressure on the court but also ensures that all of the involved parties get treated equally.
PFAS litigation involves various parties, from citizens drinking polluted water to people who have developed health conditions due to exposure, firefighters exposed to toxic foam, or even districts requesting their public water systems to be cleaned or equipped with filters.
So far, PFAS MDL is one of the largest cases of this type in the U.S., with thousands of cases already filed.
Legal Strategies: Who’s Suing and Why
Because PFAS contamination affects entire communities, various legal strategies are in play, ranging from government-initiated lawsuits and class actions to individual personal injury claims by people who are directly affected and have suffered health issues.
Mass torts and class actions are the broadest category, and they are usually started by groups of residents in a community that is directly affected by pollution, most often by exposure to PFAS-contaminated water.
The requests are usually in compensation for toxic chemical exposure but also for medical monitoring and costly health checkups. However, compensation requests for property devaluation are also in play, as the PFAS exposure can hardly increase the land value. Plus, courts order defendants to pay punitive damages too.
We also see personal injury claims by people who are requesting compensation for severe health problems developed by PFAS exposure, such as various types of cancer, thyroid disease, or immune system dysfunction. While it’s not impossible, it is very hard to prove direct causation between cancer and PFAS exposure, which makes these types of cases much more challenging to win.
We also see different levels of governments—local, state, and federal—suing companies for environmental cleanup and the costs of more advanced water filtration or added public health costs directly resulting from the pollution. Local state attorney generals lead these types of legal action.
Still, the PFAS battle is anything but easy and predictable. While chemicals are long-lasting and undeniable, proving direct causation between health issues and pollution is always tricky.
PFAS insurance issues
PFAS litigation faces another problem—insurance. While all chemical companies have insurance, it is unclear if their contracts have the notorious “pollution exclusion” clauses and to what extent.
Questions are also raised about whether insurers know that the company is polluting the environment and if they did when they became aware of it. That fact should heavily influence the insurance policies and, subsequently, the risks and liabilities of PFAS manufacturers.
Legal Hurdles in PFAS Litigation
As we said, PFAS manufacturers have the resources to hire experienced attorneys who try to gain an advantage by using several procedural tactics. One common is “forum shopping,” as they try to bring coverage battles and have proceedings in states that are known for precedent law that is going in their favor.
However, the central problem they usually bring up concerns a legal question of the plaintiff’s court standing. That is especially the case in exposure situations, where the plaintiff hasn’t suffered any health issues (yet). Defendants will try to question their right to sue if no harm has yet been done, even if the plaintiffs prove they have PFAS in their blood due to the pollution.
That’s why working with an experienced attorney who will carefully prepare your case is paramount—companies will defend their position hard, as the entire sector wants to prevent new case law that doesn’t go in their favor, as they likely have plants in other places too.
Looking Ahead: PFAS Litigation and the Asbestos Parallel
While it is hard to anticipate what will happen in such a massive litigation involving thousands of plaintiffs, toxic torts have happened before, the most famous one being asbestos litigation, the largest mass tort in U.S. history.
Similarly to asbestos, PFAS exposure only shows health consequences years later, which significantly complicates the legal strategies. However, asbestos exposure did eventually lead to severe health conditions, which is why medical monitoring expense claims are a viable option.
While the EPA is already tightening regulations for PFAS manufacturers, especially with the introduction of CERCLA, we can expect the trend to continue. As more pollutants end up on the banned substances list, we can expect more PFAS-related claims from people exposed to the banned substances.
In other words, the PFAS litigation battle is just starting, as the forever chemicals are a serious health risk affecting entire communities.
If you have been exposed to PFAS chemicals forever and are worried about your health, contact us today While our law firm is based in Florida, we work as co-counsels with partners nationwide, fighting the massive PFAS pollution problem.
