According to several news sources, including bloomberglaw.com, several chemical companies may be facing damages that exceed one billion dollars. Over the few years, there has been a dramatic shift in awareness of PFAS as it relates to toxic torts and personal injury claims. Chemical companies, including 3M, Dynax Corp., DuPont, Kidde-Fenwal Inc., Chemguard Inc., and National Foam Inc., have been named as defendants. According to a Bloomberg Law investigation of 6,400 PFAS lawsuits filed from July 2005 through March 2022 shows that DuPont has been the primary defendant in these cases. The study also suggests that when PFAS are used in a company’s finished product, they are likely to be sued.
One federal judge who is supervising thousands of PFAS cases believes that the defendants may be facing an “existential threat to their survival.” For example, E.I. du Pont de Nemours is the defendant in over 6,000 PFAS lawsuits. 3 M’s risk is rising faster than any other chemical company. Damages, in a worst-case scenario, could reach as much as $30 billion, according to estimates. The recent surge in claims against 3M suggests that 3M will endure the most liability if there is any liability. This could become more of a reality should the courts divide the defendants into the various functions they had in making PFAS-containing products. Some defendants only manufactured surfactant, while other defendants only used PFAS during the finished product. 3M handled all phases.
According to the U.S. Centers for Disease Control and Prevention, almost all Americans have PFAS chemicals inside their body. The source of these chemicals include cosmetics, fast food containers, waterproof clothing, furniture, firefighting gear, carpeting, and other items that can contain PFAS. PFAS are also used in numerous commercial applications such as wiring insulation, medical devices, and fire retardants. Per- and polyfluoroalkyl substances (PFOA and PFOS) are two types of PFAS. These chemicals were created in the 1950s, and they were first used to create products such as Teflon and Scotchgard. Now, fluoropolymers, a class of polymers within the family of PFAS, account for more than 10,000 PFAS-related chemical substances.
PFAS are valuable because they are durable. PFAS are also known as “Forever Chemicals” because these chemicals do not naturally break down. These chemicals are especially dangerous because they can accumulate in the soil, water, and in human blood. Recent studies prove that high PFAS levels can increase a person’s risk of cancer, decreases vaccine effectiveness, and can create changes in liver enzymes, among other negative health effects.
DuPont and 3M studies dating as far back as 1961 discovered the adverse health effects of PFAS exposure. However, it took 40 years for the public to question its safety. 3M eventually started phasing out certain PFOS and PFOA by 2002, and Du Pont stopped using certain PFOA chemicals in 2015.
The creation of a Multi-District Litigation (MDL) could have changed the litigation strategy of these claims. At least two other MDLs were created. One involved Teflon lawsuits back in 2006. The other focused on personal injury claims against Du Pont in 2013.
These claims fall into one of five classifications:
- Personal injury claims;
- Water utilities PFAS cleanup costs;
- Diminished property value claims where the ground is now contaminated with PFAS;
- State Attorney General lawsuits concerning damage to natural resources; and
- medical monitoring lawsuits.
The key issues to determine are a)what PFAS manufacturers knew about the risks of PFAS and b) when they became aware of these dangers.
According to some Plaintiffs’ attorneys, the more they investigate the facts and circumstances in these cases, the more “insidious” the findings.
PFAS makers deny the allegations raised in these lawsuits and reiterate that their environmental records are positive and their products are safe. However, 3M contributed about $1 billion to pay for certain PFAS cleanup projects and other environmental undertakings.
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