Navigating PFAS Litigation
June 5, 2024
Record Retrieval
Navigating the Complex Landscape of PFAS Litigation
In April 2024, a federal judge approved an agreement between 3M and public water utilities to settle thousands of lawsuits involving contamination of drinking water with per- and polyfluoroalkyl substances (PFAS). Weeks later, public drinking water systems in California filed suit against manufacturers of PFAS. The significant litigation that has arisen over the last two decades related to PFAS won’t go on forever, but from lawsuits to legislation to regulatory action, there’s no doubt that these so-called “forever chemicals” are going to remain at the forefront of many legal battles for years to come. It’s therefore important for legal professionals to understand the complexities of this evolving area of litigation. Let’s dive in and discuss key developments and important issues that arise in this ever-evolving area of the law and public policy.
However, while PFAS are useful in various products and everyday uses—such as cooking scrambled eggs for breakfast in a non-stick pan—they are also highly persistent in the environment and the human body. That’s why they’ve been dubbed "forever chemicals." PFAS can accumulate in the body and in soil and water over time, leading to potential health problems, not to mention environmental concerns. Studies have linked PFAS exposure to certain types of cancer, thyroid disease, immune system dysfunction, and developmental issues in children.
Extensive media coverage, including the 2019 film "Dark Waters," which is currently streaming on Netflix, has led to greater public awareness. And regulatory agencies have begun to take action, with several states and the U.S. Environmental Protection Agency working to establish standards and guidelines for PFAS in drinking water and the environment. Congress is also getting involved. On April 18, 2024, legislators introduced the federal Forever Chemical Regulation and Accountability Act (FCRAA). The FCRAA, if enacted, would eliminate all “non-essential” uses of PFAS within a ten-year period. The increased scrutiny of PFAS has also led to a surge in PFAS-related lawsuits, as individuals, communities, and governments seek to hold companies accountable for the alleged harm caused by these chemicals.
In addition to private plaintiffs, state and local governments have also pursued claims against companies involved in the production and use of PFAS. For instance, in 2023, the State of Michigan filed a lawsuit against a paper manufacturer, alleging that its manufacturing process produced sludge that purportedly contained high levels of PFAS detected in groundwater and surface water. These lawsuits often seek to recover costs associated with cleaning up contaminated sites, treating affected residents, and addressing other public health concerns.
The types of entities that are commonly named as defendants in PFAS litigation include chemical manufactures (such as 3M and DuPont), as well as companies that have used PFAS in their manufacturing processes or products, such as paper mills, textile manufacturers, and producers of non-stick cookware. Firefighting foam manufacturers have also been targeted. As PFAS litigation continues to evolve, new types of claims, legal strategies, and defendants may emerge. It’s therefore important for legal professionals to stay abreast of new developments that may impact current and future litigation.
Another obstacle is the fact that PFAS are used in a variety of products and applications, which means that individuals may be exposed to these chemicals through multiple sources over the course of their lives. This can complicate efforts to identify the specific source (or sources) of exposure that may have contributed to a plaintiff's health problems. There’s also a lack of definitive scientific evidence to support claims. While various studies have linked PFAS exposure to health problems, the scientific evidence is stronger for some outcomes than others. Accordingly, plaintiffs can face challenges in convincing courts that their specific health problems were caused by PFAS exposure.
To address these challenges, plaintiffs in PFAS litigation often rely on expert testimony from medical and scientific professionals who can help establish the crucial link between exposure and health outcomes. Epidemiological studies, which examine patterns of disease in populations exposed to PFAS, can also provide valuable evidence to support causation. However, the complex nature of PFAS exposure and the limitations of available scientific evidence mean that proving causation will likely remain a significant hurdle in many PFAS lawsuits.
Another challenge arises when government entities, such as military bases or public airports, are named as defendants. These entities often attempt to dismiss the claims by asserting sovereign immunity, a legal doctrine that protects government agencies from being sued without their consent.
In addition, some companies with PFAS claims mounting against them may choose to file for bankruptcy protection, creating additional hurdles for plaintiffs seeking compensation. Bankruptcy proceedings can halt ongoing lawsuits and limit the assets available for recovery. This strategy has been employed by companies in other mass tort litigation matters, such as Purdue Pharma in the opioid litigation and Johnson and Johnson subsidiary LTL Management LLC in the talc litigation.
Lexitas, a leading provider of medical record retrieval services, offers a range of solutions designed to help attorneys navigate these challenges. For PFAS cases involving hundreds or thousands of medical records, manually reviewing documents can be inefficient, inconsistent, labor-intensive, and time-consuming. Lexitas' Record Insights™ technology offers a powerful solution to this problem. By extracting key medical information and creating user-friendly summaries, Record Insights™ condenses complete medical histories into concise, easily searchable reports.
What Are PFAS?
Per- and polyfluoroalkyl substances are man-made chemicals. They’ve existed since the 1940s, and were originally used to make tanks water resistant during World War II. These highly stable chemicals are resistant to degradation, making them useful in a wide range of applications, including non-stick cookware, water-repellent clothing, stain-resistant fabrics, and firefighting foams.However, while PFAS are useful in various products and everyday uses—such as cooking scrambled eggs for breakfast in a non-stick pan—they are also highly persistent in the environment and the human body. That’s why they’ve been dubbed "forever chemicals." PFAS can accumulate in the body and in soil and water over time, leading to potential health problems, not to mention environmental concerns. Studies have linked PFAS exposure to certain types of cancer, thyroid disease, immune system dysfunction, and developmental issues in children.
The Emergence of PFAS Litigation
PFAS litigation began in the early 2000s. An early case targeted DuPont, which was filed on behalf of residents living near the company’s Washington Works plant in West Virginia. The lawsuit alleged that the company contaminated local drinking water with PFOA (perfluorooctanoic acid), which is a type of PFAS. The case settled, and as part of the settlement agreement DuPont agreed to fund an independent scientific study conducted by the C8 Science Panel to investigate the health effects of PFOA exposure. The panel’s findings linked PFOA exposure to a number of health conditions, leading to additional legal action against DuPont, and broader interest in the potential health risks of PFAS.Extensive media coverage, including the 2019 film "Dark Waters," which is currently streaming on Netflix, has led to greater public awareness. And regulatory agencies have begun to take action, with several states and the U.S. Environmental Protection Agency working to establish standards and guidelines for PFAS in drinking water and the environment. Congress is also getting involved. On April 18, 2024, legislators introduced the federal Forever Chemical Regulation and Accountability Act (FCRAA). The FCRAA, if enacted, would eliminate all “non-essential” uses of PFAS within a ten-year period. The increased scrutiny of PFAS has also led to a surge in PFAS-related lawsuits, as individuals, communities, and governments seek to hold companies accountable for the alleged harm caused by these chemicals.
Common Claims and Entities in PFAS Litigation
PFAS litigation takes several different forms, and individual claims are often consolidated as class action suits. Environmental claims can arise due to the presence of PFAS in the environment, particularly in sources of drinking water. Plaintiffs in these cases seek to hold companies responsible for the costs of cleaning up contaminated sites and ensuring access to safe drinking water. When individuals are exposed to PFAS and suffer injuries, they may seek compensation via personal injury claims, based on allegations that companies knew or should have known about the potential health risks associated with PFAS but failed to warn consumers or take appropriate action to address those risks.In addition to private plaintiffs, state and local governments have also pursued claims against companies involved in the production and use of PFAS. For instance, in 2023, the State of Michigan filed a lawsuit against a paper manufacturer, alleging that its manufacturing process produced sludge that purportedly contained high levels of PFAS detected in groundwater and surface water. These lawsuits often seek to recover costs associated with cleaning up contaminated sites, treating affected residents, and addressing other public health concerns.
The types of entities that are commonly named as defendants in PFAS litigation include chemical manufactures (such as 3M and DuPont), as well as companies that have used PFAS in their manufacturing processes or products, such as paper mills, textile manufacturers, and producers of non-stick cookware. Firefighting foam manufacturers have also been targeted. As PFAS litigation continues to evolve, new types of claims, legal strategies, and defendants may emerge. It’s therefore important for legal professionals to stay abreast of new developments that may impact current and future litigation.
Challenges in Proving Causation
One of the biggest challenges for plaintiffs in PFAS litigation is proving causation—establishing a clear link between exposure to PFAS and the specific health problems experienced by plaintiffs. Because many of the health conditions associated with PFAS exposure, such as cancer and thyroid disease, may not develop until years or even decades after the initial exposure, it can be difficult for plaintiffs to prove a causal link between their exposure and their health problems.Another obstacle is the fact that PFAS are used in a variety of products and applications, which means that individuals may be exposed to these chemicals through multiple sources over the course of their lives. This can complicate efforts to identify the specific source (or sources) of exposure that may have contributed to a plaintiff's health problems. There’s also a lack of definitive scientific evidence to support claims. While various studies have linked PFAS exposure to health problems, the scientific evidence is stronger for some outcomes than others. Accordingly, plaintiffs can face challenges in convincing courts that their specific health problems were caused by PFAS exposure.
To address these challenges, plaintiffs in PFAS litigation often rely on expert testimony from medical and scientific professionals who can help establish the crucial link between exposure and health outcomes. Epidemiological studies, which examine patterns of disease in populations exposed to PFAS, can also provide valuable evidence to support causation. However, the complex nature of PFAS exposure and the limitations of available scientific evidence mean that proving causation will likely remain a significant hurdle in many PFAS lawsuits.
Other Common Challenges in PFAS Litigation
In addition to the challenges of proving causation, PFAS litigation presents several other obstacles that plaintiffs and their attorneys must navigate and potentially overcome. One is the statute of limitations. Each state has its own statute of limitations, and in PFAS cases, determining when the statute of limitations begins to run can be complicated due to the long latency periods associated with many PFAS-related health conditions. Plaintiffs may need to argue for an extension of the statute of limitations based on the "discovery rule," which allows the relevant time limit to begin when a plaintiff discovers or reasonably should have discovered the harm and its cause.Another challenge arises when government entities, such as military bases or public airports, are named as defendants. These entities often attempt to dismiss the claims by asserting sovereign immunity, a legal doctrine that protects government agencies from being sued without their consent.
In addition, some companies with PFAS claims mounting against them may choose to file for bankruptcy protection, creating additional hurdles for plaintiffs seeking compensation. Bankruptcy proceedings can halt ongoing lawsuits and limit the assets available for recovery. This strategy has been employed by companies in other mass tort litigation matters, such as Purdue Pharma in the opioid litigation and Johnson and Johnson subsidiary LTL Management LLC in the talc litigation.
Medical Records Retrieval in PFAS Litigation
One of the key challenges in PFAS litigation is the timely and accurate retrieval of medical records. Given the long latency periods associated with PFAS-related health conditions and the potential for fragmented care across multiple providers, obtaining comprehensive medical histories can be a daunting task. However, the success of these cases often hinges on the ability to establish a clear link between PFAS exposure and the plaintiff's health problems, making medical records retrieval a critical component of the litigation process.Lexitas, a leading provider of medical record retrieval services, offers a range of solutions designed to help attorneys navigate these challenges. For PFAS cases involving hundreds or thousands of medical records, manually reviewing documents can be inefficient, inconsistent, labor-intensive, and time-consuming. Lexitas' Record Insights™ technology offers a powerful solution to this problem. By extracting key medical information and creating user-friendly summaries, Record Insights™ condenses complete medical histories into concise, easily searchable reports.
Summarize thousands of pages of medical records quickly and inexpensively
Lexitas' Record Insights™ extracts medical information and creates a user-friendly medical record chronology report.
Partnering with experienced medical record retrieval services like Lexitas can provide attorneys with a significant advantage. By leveraging cutting-edge technology and specialized expertise, these services can help streamline the retrieval process, ensure the accuracy and completeness of medical histories, and ultimately support stronger, more compelling cases on behalf of PFAS plaintiffs.
Review of Key PFAS Cases
Several high-profile PFAS cases have helped shape the current litigation landscape and provide valuable lessons for parties and legal professionals. A few of the most notable cases include:A. DuPont and the C8 Science Panel: As previously mentioned, the class action lawsuit against DuPont and the subsequent C8 Science Panel's findings played a significant role in drawing attention to the potential health risks of PFAS. The panel's conclusions, which linked PFOA exposure to six specific health conditions, laid the groundwork for future personal injury and product liability claims against DuPont and other PFAS manufacturers.
B. Minnesota's settlement with 3M: In 2018, the state of Minnesota reached a landmark settlement with 3M, resolving a lawsuit that accused the company of contaminating groundwater with PFAS. Under the terms of the settlement, 3M agreed to pay $850 million to the state for clean-up costs and water filtration projects. This case demonstrated the potential for state governments to hold PFAS manufacturers accountable and secure significant financial recoveries.
C. Ongoing multi-district litigation (MDL) in South Carolina: In 2018, the U.S. Judicial Panel on Multidistrict Litigation consolidated dozens of PFAS lawsuits into a single MDL in the District of South Carolina. The MDL, which involves claims against several PFAS manufacturers and users, including 3M, DuPont, and Chemours, is expected to serve as a bellwether for future PFAS litigation. The outcome of the MDL could have significant implications for the liability of PFAS companies and the ability of plaintiffs to recover damages.
Conclusion
The landscape of PFAS litigation is complex and constantly evolving, presenting both challenges and opportunities for those seeking to hold manufacturers and users of these chemicals accountable. As scientific evidence of the health and environmental risks associated with PFAS continues to grow, the legal and regulatory strategies and frameworks for addressing contamination are also developing. The outcomes of key cases and regulatory actions will have significant implications for affected communities and how cases are fought and won in the future. We will continue to keep you apprised of future developments in this important area of the law, and if you need assistance with medical record retrieval for your PFAS cases, Lexitas' experts can help streamline the process and support your efforts to build strong cases on behalf of your clients.
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