For more than $15 billion, 3M (MMM) and Dupont (DD) have agreed to pay to resolve allegations that PFAS chemicals, also known as per- and polyfluoroalkyl compounds, were harmful. Legal professionals believe that before it’s all through, the numbers could rise significantly.
Professor Alexandra Lahav of Cornell Law School remarked, “We should prepare for more litigation.”
It has previously been claimed by thousands of claimants, ranging from individuals to towns and states, that toxic chemicals linked to cancer and other significant medical issues contaminated the air, water, and soil all over the world.
In fact, some experts believe there’s a risk that “forever chemicals” will one day surpass the biggest legal multi-case settlement in US history. That happened in 1998 when the four biggest US cigarette producers, commonly known as “Big Tobacco,” consented to pay all 50 states more than $206 billion.
PFAS claims, according to analysts at Capstone, could cost just 3M $30 billion more.
Without a sure, cigarette claims will lose out to PFAS claims, according to Scott M. Seaman, partner at Hinshaw & Culbertson LLP.
Lahav and other legal experts, however, assert that because PFAS allegations are still in their infancy and rife with uncertainties, it is difficult, if not impossible, to precisely estimate the danger.
According to them, there isn’t a perfect analogue for PFAS for a number of reasons, including the fact that it is challenging to establish that exposure to the chemicals caused a specific ailment due to their widespread use in both consumer products and the environment.
Due of their inability or nearly inability to decompose, the substances are known as “forever chemicals” and have been used for decades to strengthen things like cookware and fabrics. Nearly all Americans have had these compounds found in their blood, and they have also been found in marine and land animals.
Major environmental lawsuits, such as the $20 billion BP (BP) Gulf of Mexico oil spill settlement in 2015, nor a long line of cases alleging asbestos injury are good examples of proxies.
This is because there were less instances of oil spills, asbestos exposure, or smoking in public spaces.
The argument for [environmental] culpability is quite compelling, according to Lahav. “I believe the issue with these ‘forever chemicals’ is that the abatement is very, extremely expensive because they are bio-permanent. Then there are possible personal injury lawsuits, which essentially have no sunset and could occur at any time.
More than 6,400 lawsuits claiming PFAS injury had been filed in federal court as of August 2022. The majority of prosecutions targeted DuPont, the producer of Teflon, while 3M has lately become a top target. Involved in the dispute are more defendants, including the retail chain Kroger (KR) and the sportswear cooperative REI.
Tuesday’s provisional approval of the $12.5 billion settlement by 3M to resolve claims aggregated into a multidistrict litigation from 19 public water suppliers and 22 states was a foreshadowing of expenses to come for significant PFAS targets like 3M.
Aqueous film forming foam, or AFFF, is a fire-repelling PFAS that allegedly contaminated public drinking water sources, according to the multi-case agreement. 2018 saw a settlement over contaminated groundwater between 3M and the attorney general of Minnesota for $850 million.
According to Scott Faber, senior vice president for government affairs for The Environmental Working Group, which campaigns for a decrease in PFAS pollution, “the [multidistrict litigation] is the first season in a long-running show.”
The 328 new PFAS water contamination sites identified by the US Environmental Protection Agency were added to Faber’s organization’s revised PFAS contamination map in August. There are currently 3,186 confirmed contamination locations in the US spread over the District of Columbia and 50 states.
Faber stated that some of the communities where PFAS testing was positive have drinking water systems that serve hundreds of thousands of people, so the bad news is that it will only get worse.
He said that the city of Fresno, California, which serves more than 500,000 people, found nine separate PFAS compounds at 194.3 parts per trillion in the final tap water.
The EPA recommended a four parts per trillion national limit for PFAS in drinking water in March, along with mandatory and open reporting of PFAS levels. By the end of the year, the agency hopes to have any adjustments completed.
In June, PFAS producers DuPont de Nemours, Chemours Company, and Corteva (“DuPont”) jointly announced a $1.2 billion settlement with a group of US water suppliers. This was another significant “forever chemicals” settlement.
The money will be put to good use cleaning up aquifers. In order to resolve 3,550 lawsuits, DuPont and Chemours, which DuPont spun off, reached a $617 million settlement in 2017. In 2021, DuPont settled over 100 personal injury lawsuits for $83 million, and it also established a $4 billion cost-sharing deal with Chemours and its former subsidiary Coteva to handle pending lawsuits.
There is room for the overall case count to increase. The states and the federal government were given the option to sue 3M under the terms of the most recent deal with 3M. Additionally, PFOA and PFOS, two additional PFAS compounds, are the subject of lawsuits.
According to University of Pennsylvania law professor Tom Baker, the PFAS claims involving water supply and land contamination are the simplest to judge because damages are based on the expense of removing the chemicals. He claimed that determining the cost of claims for illness or disease is far more difficult.
The lack of clear scientific evidence demonstrating how PFAS cause disease and the difficulty of using environmental forensics to connect a specific PFAS exposure to physical harm exacerbate this unpredictability.
In terms of bodily harm, Baker felt that “we’re still early in that.” “It appears that there are simply too many factors to generate a number. There is simply no way to know. To come up with a number is difficult.
Beginning in 2024, a number of bellwether cases will be held to gauge how jurors will respond to personal injury and other PFAS claims and the facts supporting them.
The Agency for Toxic Substances and Disease Registry (ATSDR) reports that studies indicate PFAS exposure is linked to an increased risk for kidney and testicular cancer, fertility issues, pregnancy-induced hypertension/preeclampsia, changes in foetal and child development, liver damage, thyroid disease, asthma, elevated cholesterol, and immune system changes.