By Shannon Kelleher
In the wake of landmark settlements requiring chemical giants 3M and DuPont to pay billions to US water systems for alleged toxic chemical contamination, litigation over personal injuries from PFAS exposure is starting to move forward.
The first round of personal injury cases to go to trial will involve people who developed one of four diseases after drinking water contaminated with per- and polyfluoroalkyl substances (PFAS) from firefighting foam used at airports or military sites in Colorado and Pennsylvania, which seeped into nearby communities’ drinking water, according to lawyers for plaintiffs.
No date has been set yet for a bellwether trial, which is probably at least a year down the road, said Anne McGinness Kearse, an attorney with the Motley Rice law firm, which will be representing plaintiffs in the litigation. Attorneys for both sides are currently in the process of determining which plaintiffs will be the first to have their cases heard. They are due to report a joint proposal to the court by Dec. 1. As with the water supplier cases, 3M and DuPont are the main defendants, said Kearse.
A separate round of litigation will focus on people exposed through occupational exposure to PFAS, a group that mostly includes firefighters who have been exposed to the chemicals through their firefighting gear and in aqueous film-forming foam (AFFF), which has been used for decades to help quench fires.
“We are seeing what we believe are increases in the rates of cancer in our members at younger ages,” said Sean DeCrane, director of health and safety operational services at the International Association of Firefighters (IAFF). “That gives us a lot of concern.”
Roughly 75% of firefighters who died from work-related causes in 2022 died from cancer, according to the IAFF.
Both buckets of personal injury cases are included in the multidistrict litigation underway in the US District Court in Charleston, South Carolina (MDL) that includes the water system plaintiffs.
Thousands of people across the US have filed personal injury claims tied to PFAS exposure so far, with many more claims expected.
“[There are] a large number of potential plaintiffs in the litigation, with the number of cancers that we’re seeing that could potentially be PFAS-related,” Kearse said. “Whatever happens in the water cases is going to have an impact on the occupational cases.”
After the settlements
There are over 12,000 types of PFAS “forever chemicals,” which do not break down naturally and can leach into drinking water from industrial sites, sewage treatment plants, landfills, and anywhere PFAS has been used or disposed. PFAS are found in about 83% of US waterways and are present in the blood of about 97% of Americans, according to the Centers for Disease Control. Exposure to the chemicals has been linked to numerous health problems. In March, the Environmental Protection Agency (EPA) announced proposed drinking water standards for six PFAS chemicals. The agency has proposed designating several PFAS chemicals as hazardous substances.
In August, the federal judge overseeing the PFAS MDL granted preliminary approval for a $12.5 billion settlement by 3M and for a $1.185 billion settlement for DuPont and related companies to address the water supplier claims over toxic PFAS contamination. Both settlements relate to water system contamination by PFAS in AFF, which is widely used by military and civilian airports as well as municipal fire departments.
Water utilities across the country have until early December to decide if they want to join in the settlements. In separate litigation, PFAS producers are challenging a class action suit in Ohio that could include as many as 11.8 million residents. Meanwhile, Connecticut residents recently filed a class action lawsuit against two of the state’s water suppliers over PFAS in their drinking water.
A drinking water bellwether
Twenty-eight plaintiffs will be selected for the drinking water bellwether, including eight with kidney cancer, eight with testicular cancer, eight with hypothyroidism or thyroid disease, and four with ulcerative colitis. The plaintiffs allege that they developed their illnesses as a result of drinking water contaminated with PFAS from Peterson Air Force Base or the Colorado Springs Municipal Airport in Colorado or the Naval Air Station Joint Reserve Base Willow Grove or Naval Air Warfare Center Warminster in Pennsylvania.
Residents of the Security-Widefield community near Peterson Airforce Base have two PFAS chemicals in their blood at concentrations up to 6.8 and 1.2 times higher than national levels, according to a 2022 Centers for Disease Control and Prevention report. About 85,000 residents in two counties near the Pennsylvania Navy facilities were affected by PFAS contamination, EPA tests revealed in 2014, with the chemicals seeping into many private wells.
Being able to demonstrate with existing science that PFAS has a strong causal link to the plaintiffs’ cancers will be key to the litigation.
A 2005 to 2013 study of over 69,000 people long exposed to perfluorooctanoic acid (PFOA) from a DuPont plant in West Virginia found evidence of probable links between this PFAS chemical and each of the health problems that will be represented in the bellwether. It also found probable links between PFOA and high cholesterol, as well as elevated blood pressure during pregnancy.
A 2021 review of PFAS and cancer studies concluded that the types of cancer most strongly linked to PFAS exposure are testicular and kidney cancer. Elevated blood levels of perfluorooctanesulfonic acid (PFOS), a type of PFAS, have been linked to higher risk of developing testicular cancer, according to a study published in July 2023.
Research on firefighters has been a major contributor to our understanding of the links between PFAS and certain diseases, said Kearse.
Kearse, along with lawyers from three law firms, has been retained by IAFF to represent firefighters and their families who are seeking compensation for PFAS-related illnesses and to work towards changing regulatory standards around firefighting gear. PFAS has long been a major component of the gear’s moisture barrier, although the chemicals are present at varying levels in all layers of the gear, according to a May 2023 study by the National Institute of Standards and Technology.
A vote by the National Fire Protection Association membership in June could potentially result in the removal of a requirement that has prevented PFAS-free moisture barrier alternatives, said DeCrane.
“We get an email every day about firefighters concerned about their exposure,” he said. “We get an email I would say almost every day about members who have been diagnosed with cancer that want to find out why they’ve been diagnosed with cancer or what they’ve been exposed to. We understand that there’s risk in the job that we do, but to potentially be exposed to toxins within our gear…firefighters are asking why.”