Early PFAS (per/poly-fluoroalkyl substances) litigation: a case study in frustration

On January 6, 2016, the New York Times Magazine published a lengthy feature on the litigation surrounding a DuPont plant manufacturing perfluorooctanoic acid (PFOA). The story makes a tragic hero of a partner at a 400+ lawyer firm founded in 1885, but is also a case study in many of the problems that plague otherwise successful large firms when they undertake what is essentially public interest litigation on a contingency.

The New York Times feature was the basis for a motion picture, Dark Waters, in 2019. The story was first told in the 2007 book “Stain-Resistant, Nonstick, Waterproof and Lethal: The Hidden Dangers of C8” by Callie Lyons, a Mid-Ohio Valley journalist who covered the controversy as it was unfolding. The film has grossed over $23 million.

In 1998, the law firm, which was a leader in the field of Superfund litigation representing chemical companies and other potentially responsible parties under federal Superfund regulations and guiding negotiations among municipal agencies and numerous private parties agreed to represent a farm family in an action against DuPont for contaminating local waters with PFOA from its Parkersburg fluorocarbon manufacturing facility.

The newly minted partner whom the farmer had retained had spent his years as an associate in the firm becoming an expert on the Environmental Protection Agency regulatory framework, the Safe Drinking Water Act, the Clean Air Act, and the Toxic Substances Control Act. According to the New York Times story, “He mastered the chemistry of pollutants, despite the fact that chemistry had been his worst subject in high school.”

After suit was filed during the summer of 1999, DuPont immediately commissioned a study of the property by six veterinarians chosen by DuPont and the E.P.A. Their report concluded that the cattle who died and those who were dying were the victims of “poor nutrition, inadequate veterinary care and lack of fly control.”

According to The New York Times, “With the trial looming, [the attorney] stumbled upon a letter DuPont had sent to the E.P.A. that mentioned a substance at the landfill with a cryptic name: PFOA.’ In all his years working with chemical companies, ‘[he] had never heard of PFOA. It did not appear on any list of regulated materials, nor could he find it in Taft’s in-house library. The chemistry expert that he had retained for the case did, however, vaguely recall an article in a trade journal about a similar-sounding compound: PFOS, a soaplike agent used by the technology conglomerate 3M in the fabrication of Scotchgard.”

Retaining an expert is not enough

According to the New York Times, the attorney “hunted through his files for other references to PFOA which he learned was short for perfluorooctanoic acid commonly known as “C-8” in the industrial chemical industry. But there was nothing.” Although attorneys at large law firms not involved in intellectual property matters generally have little need to, or interest in, searching the scientific and technological literature, nevertheless, any action claiming that a toxic substance caused injury to humans or animals demands such a thorough search before is filed. No attorney in good conscience should file a lawsuit against a major corporation alleging that a facility operated by the corporation was responsible for personal injury, illness, and other damages to human beings and animals without having determined what is going on at the plant, what products were being manufactured there, and without having studied the entire extant body of published literature about those products and their chemical constituents.

In addition, counsel should have been aware of the fate of the probable waste streams in the environment surrounding the plant and the most likely interactions between the constituents of those waste streams and the biogeochemical processes of the regional ecological system into which they were released.

In this type of litigation, under the circumstances of this kind of “David and Goliath” disparity of resources, counsel should certainly have examined and properly included in the complaint the substance of all extant published literature that existed about perfluorinated compounds at that time. Eventually, the attorney politely asking the Company to share all documentation related to PFOA. DuPont refused.

Finally in the fall of 2000, the attorney obtained a court order requiring the company to produce the documents. He was surprised when DuPont delivered 110,000 pages of loose of disorganized documents which he would now need to arrange and organize.

In 1979, the attorney for the veterans in the Agent Orange litigation demanded that all of the documents be produced on microfilm. In 1999, the attorney for the PFOA Plaintiffs could have demanded their production in some kind of electronically searchable format. The attorney was surprised at “the scale of incriminating material that DuPont had sent him;” and DuPont quickly settled because this was only a single “nuisance” case. The farmer agreed and the firm received its contingent fee. If the case had ended with this settlement, so would this post. It is what happened after the settlement that requires more discussion.

Raising the table stakes

The attorney went on to prepare a 972 page brief against DuPont that included 136 attached exhibits, supporting his conclusion that, “We have confirmed that the chemicals and pollutants released into the environment by DuPont at its Dry Run Landfill and other nearby DuPont-owned facilities may pose an imminent and substantial threat to health or the environment,” On March 6, 2001, he his brief and a letter to the director of every relevant regulatory authority and eventually sent his entire case file to the E.P.A. He demanded immediate action to regulate PFOA and provide clean water to those living near the factory.

Instead of writing letters, the attorney should have incorporated that entire 972 page document together with those 136 exhibits into the complaint in a public interest class-action seeking a declaratory judgment and equitable relief restraining DuPont from continuing to release the waste from the manufacture of perfluorinated compounds into the air and water outside the confines of its industrial facility. He did not and DuPont continued to create serious, permanent, and irreparable environmental damage as a result of the persistent and toxic nature of the perfluorinated compounds it manufactured at the Parkersburg plant. Now, in 2019, almost two decades later, The United States Environmental Protection Administration, (U.S. E.P.A.) is considering establishing standards and limits for PFAS in public drinking water.

The substance of the attorney’s letter and the documents upon which it was based threatened, according to an internal DuPont memo, “the entire fluoropolymers industry” — an industry responsible for the high-performance plastics used in many modern devices, including kitchen products, computer cables, implantable medical devices and bearings and seals used in cars and airplanes.

Three years after the attorney wrote his letter, DuPont negotiated a $16.5 million settlement with the E.P.A. for violations of the Toxic Substances Control Act but was not required to admit liability. At the time, it was the largest civil administrative penalty the E.P.A. had obtained in its history, but the fine represented less than 2% of the profits earned by DuPont on PFOA that year.

A bridge too far

Although according to The New York Times story, no attorney at the law firm had ever filed a class-action lawsuit,” the attorney and his law firm followed the conventional path set by the small group of securities, consumer, and employment class-action firms and signed-up a representative lead plaintiff for a class in which he included anyone whose drinking water had levels of PFOA above 0.05 parts per billion. This was a tactical mistake.

Why limit the class to those whose drinking water contained more than a specific level of a toxic contaminant? What is the difference between a level of 0.06 ppb and 0.04 ppb? Let the level be determined by the Court on the motion to certify the class.

By defining the contamination level for certifying the class as that level below which no physiological injury can be expected, the burden shifts to the manufacturer to come forward with evidence establishing a reasonable level below which no harm would occur. In a toxic tort case the Plaintiff must first establish that the putative toxic substance can cause physiological injury and damage, cause-in-fact.

After establishing cause in fact, a precedent finding that need not be re-litigated with respect to each individual member of the class, it is necessary to establish proximate cause in the traditional sense for each individual plaintiff or small group of plaintiffs with common exposure and common effects.

In 2001, there was scant information available about the biological effects of PFOA, much less that it was capable of causing physiological injury. Nevertheless, the attorney filed suit claiming that 70,000 people had been poisoned by a compound which the government didn’t recognize as a toxic substance and, for the purpose of federal regulatory agency action was no different than water itself in the state court hoping to take advantage of the recognition by West Virginia courts of “medical monitoring claims.” If the plaintiff prevails, the defendant is required to pay for regular medical testing and if the plaintiff should become ill eventually, then the plaintiff can sue for damages.

The case belonged in federal court because the perflourocabon compounds were ubiquitous throughout the Biosphere and not limited to any single area and their effects were not limited to any single individual. In September 2004, DuPont settled the class-action suit by agreeing to install, but not maintain, filtration plants in the six affected water districts if they wanted them and pay a cash award of $70 million to fund a scientific study to determine whether there was a “probable link” — a term that delicately avoided any declaration of causation— between PFOA and any diseases. If such links were discovered, DuPont would pay for medical monitoring of the affected group in perpetuity, but until the scientific study came back with its results, class members were forbidden from filing personal injury suits against DuPont.” The settlement enabled the law firm to recoup their losses to that point.

The settlement deal was a Trojan Horse

DuPont had agreed to fund the epidemiological study without any limitations as to cost which was ultimately $33 million. The scientists, freed from the restraints of academic budgets and grants, had hit the epidemiological jackpot: the personal data of an entire population and unlimited resources available to study them.

The scientists designed 12 studies, including one using environmental modeling to determine exactly how much PFOA each individual class member had ingested. Under the terms of the agreement, if no correlation was found between PFOA and illness, the Plaintiffs would be barred from filing any personal injury cases. Because of the unlimited budget, the panel took seven years, much longer than expected, to perform its analysis.

The longer it took for the science panel to conduct its research, the more expensive the case became as the law firm continued to pay consultants to interpret the new findings and relay them to the epidemiologists. In December 2011, the scientists began to release their findings: there was a “probable link between PFOA and kidney cancer, testicular cancer, thyroid disease, high cholesterol, pre-eclampsia and ulcerative colitis.” By October, 2015, 3,535 plaintiffs had filed personal injury lawsuits against DuPont. The first case to go to trial was a kidney-cancer survivor [who] was awarded $1.6 million, but DuPont appealed.

At the rate of up to a dozen jury trials a year, DuPont could continue to limit payouts on PFOA cases to nominal annual expenses over the next century. Perhaps a wise business decision. When second case concludes, there will be 3,533 cases left to try.

Settled, but with no admission of liability

In 2017, DuPont and Chemours Co agreed to pay $671 million in cash to settle about 3,550 personal injury claims arising from the leak of perfluorooctanoic acid, PFOA or C-8, from its plant in Parkersburg, West Virginia. The settlement was $300 million below Wall Street estimates. Both companies denied any wrongdoing.

DuPont said in a statement that it had stopped using C-8 in operations at the West Virginia plant more than a decade ago. It had used the chemical there since the early 1950s.

In 2001, sixteen years earlier, residents brought a class action against DuPont over C-8 exposure. The company agreed in 2004 to fund medical monitoring programs and install new water treatment systems.

DuPont convened a panel of scientists to determine whether any diseases were linked to C-8. The panel concluded that there was a probable link with six illnesses: kidney and testicular cancer, ulcerative colitis, thyroid disease, pregnancy-induced hypertension and high cholesterol.

The case is In re E.I. Du Pont De Nemours and Company C-8 Personal Injury Litigation, U.S. District Court for Southern Ohio, MDL–2433.

A better way

With all the data available to the attorney and with the support of his 400 lawyer firm, all he has to do is file the appropriate public interest class action to declare PFOA a water “pollutant” and compel EPA to speed up its process by issuing at least a “provisional” limit. It would cost much less than he and his law firm have already spent and are already spending on the existing endless litigation and, if properly managed, would probably lead to a “universal trust fund” settlement of all the PFAS litigation.

There is still an opportunity to take legal action against persistent per/poly-flourocarbon compounds to protect the Environment for generations yet unborn, just as Yannacone did in the late 1960s with DDT and in the early 1980s with dioxin comtaminated Agent Orange.