PFAS Regulation, Litigation, and Differentiation with David Marmins and Morgan Harrison

The PFAS family of man-made compounds are found in countless consumer products, as well as medical devices and firefighting foam. The incredibly strong carbon-fluorine bond that make PFAS so useful also makes them incredibly persistent. They are so ubiquitous that PFAS can be found in the blood of every human on earth and rainwater throughout the world. 

In this episode we are going to give you some history of the compounds, discuss some important differences, review what litigation we're seeing (including the various claims and defenses), note what we can learn from recent settlement structures, forecast the impact of any new regulation, and predict what litigation might be next. 

My guests have been at the forefront of PFAS litigation since they began defending carpet manufacturers in suits brought by two Alabama municipalities in 2017. They are:

David J. Marmins, a partner with Arnall Golden Gregory LLP in Atlanta, Georgia. He is part of the firm’s litigation and real estate practices and co-chair of the firm’s retail industry team. David has concentrated his practice on complex civil litigation since becoming a lawyer in the last century. He earned his JD from Georgia State University College of Law. 

Morgan E. M. Harrison, partner, in AGG’s litigation and dispute resolution and employment practices. She is also a member of the payments systems and fintech, and background-screening industry teams. Morgan has a JD from Vanderbilt University Law School.

BONUS! Read David and Morgan's article on the subject, just published in the Journal of Emerging Issues in Litigation.

I hope you enjoy the episode. If so, give us a rating!

This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at Editor@LitigationConferences.com.

Tom Hagy
Litigation Enthusiast and
Host of the Emerging Litigation Podcast
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Transcript

Speaker 1: 0:05

Welcome to the Emerging Litigation Podcast, a co-production of HB Litigation and critical legal content, custom content for law firms and litigation service providers, and the newly formed VLAC's Fast Case, your World of Legal Intelligence and our friends at LawStreetMedia. I'm your host, tom Hagee, litigation Content Producer and enthusiast and an average bongo player. Contact me if you have an idea for an episode. In addition to often being polite, I'm always looking for new twists on the law, whether it's a new regulation, legislation or an important new opinion, or it could be a development in the world that will test existing law, or anything you're dying to share with other litigators, organizations or individuals. And, if you like what you hear, give us a rating. That always helps. And now here's today's episode.

Speaker 1: 0:57

Today we're going to talk about litigation that comes from claims rising from an invention that, like so many inventions, it started off as an accident, and it joins a long list of inventions that came about from accidents, things like probably the most famous one a moldy petri dish, which famously gave us penicillin, and I didn't know this one. A chocolate bar that melted in the pocket of a man who was working on radar technology yeah, that led to microwave ovens. A man working on coal tar derivatives, spilled some on his hand and, as one does, he licked it off, but he was pleasantly surprised by its sweetness. That could have gone horribly wrong. That gave us saccharine. A chemist was trying to make rubber sturdier. He accidentally dropped a bit of a mixture of rubber and sulfur onto a hot stove. The heat vulcanized the rubber. There you have it the miracle of car and truck tires invented by Chuck Goodyear, the X-ray that came about accidentally, super glue and velcro, post-adodes, sticky things.

Speaker 1: 2:10

Those all have changed our lives accidentally, while others, like Silly Putty and Play-Doh, they've amused us for decades. All you kids out there. My favorite of all, of course, is potato chips. That was the result of restaurant patrons complaining that the chef didn't slice his french fries thinly, enough Picky, so he cut them super thin. I don't know, maybe he was being funny. Anyway, he cut them super thin and voila, potato chips were born. Chef's name is easy to remember it was Crumb, george Crumb. The fact that he didn't get a Nobel Prize is something I consider a travesty. In the invention we're talking about today, a large family of compounds man-made of course, including what I believe is the first one, and that one came about accidentally in 1938, a Dupont chemist named Roy Plunkett was doing some experimenting with a specific gas tetrafluoroethylene say that 10 times, when he saw it transform right before his eyes into a white waxy solid. Rather than name it after himself, which is what I would have done.

Speaker 1: 3:22

He called it polytetrafluoroethylene, and that was famously marketed as Teflon. When I read that it turned into a white waxy solid, I immediately thought it was probably candy corn, because there's no way that that was invented on purpose, and I say that because this is Halloween season. Now. The family of related but very different compounds grew like crazy. They weren't accidents, and there are many acronyms and subtypes, but I'm going to stick with PFAS, which stands for per and polyfluoroalkyl substances. They're found in countless consumer products, such as paints, cleaning products, food packaging, carpets and apparel to make them stain in water resistant medical devices and firefighting foam, so use in those as well. So in this episode you're going to learn more about the unique and persistent properties of these compounds. Write down how many times you hear the word persistent, because they are. Where are these stubborn compounds all ending up and how they are not, although it would be easier all the same. You'll learn about long chain and short chain PFAS having to do with the number of carbons in each compound. We're learning and having fun. You will learn about what scientists are saying about the impact of PFAS on health and the environment and the kind of litigation we're seeing out there Now are these things still in use. So they regulated. How might regulation affect litigation and what future litigation might we have to look forward to Joining me to answer these questions and more, because there's always more, are David J Marmans.

Speaker 1: 5:04

He's a partner with Arnold Golden Gregory LLP in Atlanta, georgia. He's part of the firm's litigation and real estate practices and co-chair of the firm's retail industry team. David has concentrated his practice on complex civil litigation since becoming a lawyer in the last century. He earned his JD from Georgia State University College of Law. With him is Morgan E M Harrison. I like people with two middle initials. I wonder if she has problems filling out forms like I do. Morgan is also a partner. She's in the firm's litigation and dispute resolution and employment practices. She's also a member of the payments systems and fintech and background screening industry teams. Morgan has her JD from Vanderbilt University Law School. With that, here are David Marmans and Morgan Harrison of Arnold Golden Gregory. Hope you enjoy it Well, david and Morgan. Thank you very much for doing this today. Thanks, tom. I have introduced you and introduced the subject a bit. Let's dive into the first question, for both of you. Tell us about how your firm became involved in NPFAS litigation.

Speaker 2: 6:12

It really is the result of two practice groups, environmental and litigation, working closely together. One of our environmental partners, John Spinrad, who's been at this for a long time and pretty well known in the industry, was approached by an outside corporate counsel for a family that operates several companies within the carpet industry, manufacturing and distribution. They had just been served with a lawsuit that they were not expecting. They didn't know anything about PFAS at the time, but it named them, along with many other companies, as defendants. The nature of the claims and these were actually Alabama lawsuits were the first ones before the Georgia ones came about. They were alleging claims related to nuisance and trespass, not the typical environmental, federal regulatory claims.

Speaker 2: 7:10

John knew that my specialty area of practice was real estate litigation and I edited the treatise on Georgian nuisance law. He approached me about pitching our firm to these folks to handle these cases. We did that. They retained our firm. Over the last, I guess, those eight years ago, we've represented, I guess, five of their companies in four different lawsuits, a couple in Alabama and a couple here in Georgia.

Speaker 1: 7:39

Morgan, did you want to add anything to that?

Speaker 3: 7:41

Well, no, I mean I'll just speak personally. I kind of got involved after having done a bit of work with David. I was a very junior associate when I first got staffed on those matters and they've been a big part of my practice ever since.

Speaker 2: 7:56

These cases have seen Morgan, from her time as an associate to becoming a partner and getting married and having two children, all during these cases.

Speaker 3: 8:06

I was on all of that, morgan, I suppose yes, we do frequently, about how I've experienced every personal and professional milestone as an adult over the course of these matters.

Speaker 1: 8:18

Well, that's exciting. It's nice to hear let's talk about the origin and history of PFAS litigation, because it's actually a collection of chemicals and compounds or whatever. There's like thousands of them, right, and they're famously called forever chemicals. So talk about the origin of the litigation itself, the history.

Speaker 2: 8:38

What can you tell us about that? I think that a good place to start is probably with just a little bit about what PFAS are, and then we can talk about why people are suing about them. We use PFAS PFAS to refer to a group of about 9,000 or more different chemicals. What they have in common and I won't try to say this too often, but they're PFAS stands for purr and polyfluoroalkyl substances Nice, much easier to say PFAS. So that's what we use and, as I said, there's thousands of these combinations. But what they have in common is that they are combinations of carbon and fluorine, and that actually I think it's interesting story that gets told about how they were their manmade chemicals and how they were first made was, like so many things by accident, in a 3M factory, apparently, a chemist spilled some of this stuff on a tennis shoe and they realized that it left a coating that repelled oil and water better than anything they'd seen before, and so they started working with this and combining carbon and fluorine, and they realized that that's something that they refer to. C8, which has eight carbon atoms tied to a single fluorine atom, formed the strongest bond that they'd ever seen in organic chemistry Fluorine and carbon, for whatever reason, we won't get into too much of the weeds. More than this forms a very strong bond that repels everything that comes in contact with it and that makes it very valuable for many consumer and other products because it resists stains and water, grease, soil. And DuPont followed. 3m not long after started making their own C8 chemicals and these got used by DuPont and 3M in products that we're all familiar with DuPont's Teflon nonstick cooking products, stainmaster carpet. 3m used it in its Scotch Guard, which is used in carpet and other products and as well, not just consumer products, but medical supplies that are a little less well known. When we went through COVID, of course, we started talking a lot about PPE, and a lot of that uses various PFOS needles, catheters, stents so it's very, very valuable in a lot of products. The problem occurs that the thing that makes it so valuable, this bond that can't be broken makes it among the more persistent, maybe the most persistent man made chemical that we've ever seen. That's where you get what you refer to as forever chemicals, which is certainly a plaintiff's term that they use to describe them, but it's hard to ignore the fact that they really don't go away and they persist in the environment and it can be found in our blood and in rainwater. We can talk about that maybe a little later. So that's sort of what what PFOS are and why they're on the radar.

Speaker 2: 11:41

There really wasn't litigation to speak of until the late 90s when a farmer in Parkersburg, west Virginia, was trying to figure out why all his cows were dying and he had a farm near a DuPont chemical manufacturing plant. He was fortunate to find an attorney by the name of Rob Billet who represented him and started to explore this. They ended up suing DuPont and during the discovery process, where we obtained documents and information to support our cases and litigation, they uncovered just a trove of information from DuPont and its internal studies about this chemical and PFOS compounds. In particular, they were using something called PFOA, which is a C8, and particularly strong form the strongest form of a PFOS and they ended up suing and settling that case.

Speaker 2: 12:43

One of the effects of that settlement, one of the results of that settlement, was that Dupont agreed to finance a study of PFOA's potential health effects and that study ended up involving tens of thousands I think about 70,000 different people in that geographic area and that study found a probable link to various diseases in humans.

Speaker 2: 13:10

That led to a series, thousands of personal injury lawsuits, again by people that lived close to that manufacturing facility, and Dupont ended up paying hundreds of millions of dollars I think over $700 million to settle all of those near this Teflon plant.

Speaker 2: 13:27

But again we're still talking about people that lived near the manufacturing plants where these plaintiffs. That led to and I'm gonna jump ahead to what I would refer to as sort of the modern era of PFAS litigation, which started later in the 2000s and really took off after 3M paid over $800 million to the state of Minnesota so they could create a filtering mechanism to try to filter PFAS out of drinking water, because Minnesota had sued 3M alleging they were contaminating drinking water with discharging PFAS products through its sewer system. And that case and that huge settlement led to PFAS suits all over by municipalities, not only against chemical manufacturers. But what it started to happen and what led to our cases in Alabama and Georgia were not just companies that make the chemical, but they use it and then they discharge some amount of it when they are producing their products and adding PFAS chemicals to their products.

Speaker 3: 14:35

The attorney that represented Mr Tennant, rob Billott, or Rob Billott. He actually wrote a book about his experience, which I would highly recommend. It's a very compelling story and how he got involved. But one of the things I found really interesting was how much effort Mr Tennant had put into advising the EPA of his problems and subsequently his attorney, when he got involved and they filed a lawsuit, sent a lot of information to the EPA about the issues that his client was experiencing with respect to these chemicals. He felt fairly confident that something DuPont was doing was leading to the issues that his cows were experiencing. So I just point that bit of the story out because I think it's important for when you're thinking about the actions that EPA has and hasn't taken with respect to these chemicals and which regulations have been proposed and yet not enacted and whatnot, that's helpful context to know that it's not as if EPA hasn't been aware of at least certain of these chemicals potentially having issues with respect to human health, animal health or the environment.

Speaker 1: 15:56

Okay, all right thanks for that.

Speaker 2: 15:58

Probably also worth just mentioning that Mark Ruffalo played Tennant's lawyer in a movie called Dark Waters, which is actually a pretty good movie about all this.

Speaker 1: 16:08

And he is good in that. So who are the likely defendants? And you're representing the. Who are the likely defendants?

Speaker 2: 16:14

We've been representing first, actually, some carpet distributors who should never have been named, don't use PFAS at all, and then, subsequent to that, companies that are involved in various parts of the carpet manufacturing process dying the carpet and finishing it and things like that. And there's certainly and the Georgia cases are a good example of the various kinds of defendants, these carpet industry cases, because it involves really all the main categories all in one case You've got the big chemical manufacturers that actually created the C8s and the other PFOAs and related PFAS chemicals, like 3M and Dupont. And then there's some smaller chemical manufacturers. Those sort of companies exist all over the country really to serve particular industries with particular chemicals, and the carpet industry has those as well. So those are the chemical manufacturer defendants, which were really the original PFAS defendants.

Speaker 2: 17:16

And now, with these cases and others, you've got companies that don't manufacture PFAS but that use it in their production of other things, such as carpets or non-stick cookware, cosmetics, food packaging. All these companies that don't make the PFAS but they use it and that, as a result of using it, may discharge some amount of PFAS into the sewer system that gets to the local utilities that will clean and provide drinking water, and that's another defendant right, because now you have the local utility companies and in this case we're talking about a carpet industry based in Dalton Georgia, so the Dalton utility that provides drinking water or that treats water, and then they actually spread treated water in a forest in Northwest Georgia that has some rivers nearby and so the allegations are that they've been spreading water out that while they treat it they don't have the capability to treat it and remove PFAS from the water. That's much more expensive system than most utilities typically have and that's going back to that settlement in Minnesota that was, I believe, an 800 million or so settlement to create a system that can filter this stuff out. So you've got chemical manufacturers, product manufacturers, local water utilities. These days.

Speaker 2: 18:47

You've also got it going into companies, like a big lawsuit against McDonald's and Burger King because they discovered that PFAS is really great for food packaging. I believe this originated at McDonald's when they came out with hash browns and people didn't like the idea that the hash browns made the packaging very, very greasy and people didn't want to handle that, and so they started adding PFAS to their packaging and that solved that problem and they realized they could use it in packaging their Big Macs and other items, and other food manufacturers have done that as well, so they've become defendants in lawsuits. Cosmetics companies have become defendants in lawsuits, not because of any discharge of PFAS, but for things like advertising that they're clean and safe, and things like that.

Speaker 1: 19:39

There's a lot of potential defendants Okay, yeah, the hash browns. That's a tough call. Do you want grease or do you want PFAS? I mean, it's a little, you don't have to comment on that.

Speaker 3: 19:51

What becomes a bit of a tougher call is the defendants that have been deemed for using AFFF, because AFFF is used to put out certain kinds of certain classes of fires. There's a big multi-district litigation in Carolina that I believe, as of the last time I checked, is currently stable. The parties are attempting to work through some sort of settlement. Potentially, airports, fire training centers, firefighters they all use AFFF to help stave off fires. So that's, I think, an even bigger question than hash brown versus PFAS.

Speaker 2: 20:31

Yes, afff is aqueous firefighting phone, which I think they still use CA in that, because there's just nothing that works as well as that does to put out some of the most serious fires.

Speaker 3: 20:45

And when David says CA, ca is the eight carbon chain PFAS that originated back in the 30s and 40s when 3M and DuPont were developing PFAS for the first time. After the original CA products were developed, chemical manufacturers began creating shorter chain PFAS Us six chain PFAS we've also. There's also four chain PFAS and those are referred to as the next gen chemicals and those PFAS. It's far less clear to scientists what impact, if any, short chain PFAS has on human or environmental health. So when David talks about C8 being used in AFFF, that's a real pickle because although there've been scientific studies indicating that there are potential adverse health impacts of C8s, they're also the most effective in AFFF.

Speaker 1: 21:46

Did you guys know all about chemistry when this all started?

Speaker 3: 21:50

I was a French major.

Speaker 1: 21:51

Perfect, that's perfect. Louis Pasteur was. That's all I got.

Speaker 2: 21:56

We've had to study a lot, but over the course of time we've sat through a lot of depositions of a lot of experts and other people that know a lot more than we do. But the more we talk about it, the more I realize we've learned yeah.

Speaker 1: 22:10

Well, yeah, it sounds like it. It's like me with law. I didn't go to law school, but I've only written about it for 40 years, so I feel like I can fake it. It's irritating when friends ask me my legal advice, though I've just started giving it. I figure I don't have a license to lose. So, I'm sure there are other penalties involved.

Speaker 3: 22:30

Those include all adequate disclaimers in every text message and email.

Speaker 1: 22:34

I'm not even qualified to write one, but they want me to answer them. Can I sue for that? Of course you can.

Speaker 3: 22:39

That's a different question, whether you'll win.

Speaker 1: 22:41

I know that's what I tell them. All right, so, morgan, back to you. What kinds of claims are being brought against companies that have any connection with PFAS?

Speaker 3: 22:49

David touched on this briefly so I'll just kind of riff off of what he already mentioned with respect to the false advertising in the greenwashing. So there's a federal law that prohibit unfair and deceptive acts and practices, but then Pretty much Georgia certainly has one. I would imagine most jurisdictions have a state counterpart to that. We have seen lawsuits brought by both consumers and environmental groups basically alleging that companies that use PFAS in their products have been greenwashing their products by claiming that they're safe and environmentally friendly and that any such advertising was false because PFAS is not environmentally safe. That's been its own wave of litigation, particularly in the cosmetic space where we've seen a big uptick in those kinds of false advertising lawsuits.

Speaker 3: 23:49

The other common claims that you hear arise out of harms tied to the discharge of PFAS in the environment. You'll see trespass and nuisance and those sorts of claims you see being brought by property owners, that neighbor companies that either have chemical company that manufactures PFAS and discharges it or even manufacturers that use PFAS in their operations. You've also seen municipal water utilities and or their customers bringing lawsuits asserting trespass, nuisance relating to the discharge of PFAS in local water sources. Another big category you see negligence, product liability. There've been some personal injury lawsuits, again, those you tend to see from neighboring property owners. We talked earlier about the DuPont lawsuits that Mr Tenant brought, but that spun off a separate lawsuit brought by the same attorney who represented Mr Tenant, on behalf of the people who lived in other residents of Parkersburg who had been experiencing adverse health effects. Then you've also seen some cases brought by firefighters and people who work with PFAS day to day who are claiming that they've suffered personal injuries as a result of the exposure to the PFAS in those products.

Speaker 3: 25:23

The other, I guess, big kind of category of lawsuits that you see invoke the Clean Water Act and, in certain cases, state specific laws and regulations with respect to drinking water standards. As of today, there isn't an enforceable federal regulation or drinking water standard with respect to PFAS, but that has not stopped plaintiffs from bringing claims for violation of the Clean Water Act. Where they tend to get more attraction, though, is where they assert a claim under states enforceable drinking water standard. There are several states that have those. There's Maine, massachusetts, michigan, new Hampshire, new Jersey, new York, pennsylvania, rhode Island, vermont and Wisconsin All of those jurisdictions and potentially more.

Speaker 3: 26:15

I know that there are other states that have drinking water standards in the works. They're kind of making their way through the legislative process, but in those jurisdictions at a minimum there are enforceable drinking water standards that can be invoked in a lawsuit. Then you see one off kind of creative claims that you hear. One that comes to mind I think we may have written about this in our article is the shareholders derivative suit against commours arising out of representations made to shareholders with respect to the company's exposure in these PFAS lawsuits that have been brought against it as a chemical manufacturer.

Speaker 1: 26:52

So what kind of defenses are available to these folks, to these companies who are being sued? Morgan?

Speaker 3: 26:58

To give the standard lawyerly answer. It depends on what the defendant does. Every defendant kind of has a different theory of defense that they can assert. In this context there has been quite a bit of finger pointing, if you will. I think too it's important to note. Of course, each claim has its own set of elements that the plaintiff has to prove to prevail. You can kind of pick apart, as a defendant, those elements claim by claim.

Speaker 3: 27:32

When we talked about false advertising and greenwashing and whatnot, in that instance the plaintiff is going to need to show that the defendant knowingly misrepresented that its products were safe and PFAS free, which is rather difficult, I think, given that the science around PFAS is evolving and it's not at all clear whether the majority of PFAS, which are not C8s but rather shorter chain PFAS, have negative health effects on humans or the environment. And in addition to that, many defendants can argue that they lack a legal duty to the plaintiff. So, as an example, a manufacturer who used PFAS in making a product can reasonably argue that to the extent there was a duty to the plaintiff. That duty resides with a company that actually made the chemical and knew what its properties were, as well as any health risks associated with that which may not have been communicated to the manufacturer, especially when you consider the fact that these chemicals aren't, by and large, regulated, certainly not on the federal level, but even on the state level. A lot of those drinking water standards were only recently passed. So when a manufacturer gets a chemical from its supplier to use in its operations, that chemical might not come with any special instructions regarding handling or discharging or discarding the chemical.

Speaker 3: 29:05

I think a lot of the defenses come down to what information the defendant had or did not have about the characteristics of the chemicals that they were using.

Speaker 3: 29:16

And I think, just to call back to my earlier comment, the fact that the EPA has known about the existence of PFAS for decades now and hasn't regulated them is, I think, compelling for defendants. Even today, using or discharging PFAS doesn't violate any federal law, and in most states it doesn't violate state law either. So and then I think, kind of the last defense that I wanted to mention, a big argument for defendants is a lack of causation with respect to the plaintiff's damages. Punction can be challenged in a variety of ways, but the one that comes to mind immediately for me is that PFAS are so ubiquitous that it becomes a real challenge, I think, for plaintiffs to assert that any one defendant is the sole cause or source of PFAS and, by extension, the plaintiff's damages. It's so ubiquitous that I read an article once that it's in our rainwater even we encounter PFAS in so many different ways from any number of sources that I think that really plays into the defendant's argument challenging causation.

Speaker 1: 30:34

I mean it sounds like asbestos times a million that was widely used and there were industry studies and some of it. I'm sure there are some big differences between them. Like you could ban asbestos, you could eventually do that and there were defendants that didn't know anything. Like some small company might buy a gasket company and then they find out that the gaskets had some traces of asbestos syndrome and so suddenly some mom and pop manufacturer was liable for asbestos exposure, even though they had nothing to do with the manufacturer of it.

Speaker 2: 31:09

I wanted to add on the defense point that the lack of scientific evidence of health problems from PFAS exposure remains a real problem for plaintiffs in all of these cases. Everyone agrees that PFAS are among the most persistent chemicals that have ever been created, but there's no consensus of health impacts. There's a difference between persistence and being able to prove that PFAS are causing some particular health problem. And the current EPA statement on health impacts is worth and I'm going to read this so I get it right, but this is the current EPA statement says current scientific research suggests that exposure to high levels of certain PFAS may lead to adverse health outcomes. However, research is still ongoing to determine how different levels of exposure to different PFAS can lead to a variety of health effects. So they use words like suggest and may lead to very vague statement that while they're ongoing studies right now, I wouldn't be surprised if we're not too far away from more definitive studies.

Speaker 2: 32:24

There's not a lot out there Now. What you will also hear people refer to are studies not on humans, but you can go all the way back to 1978 when 3M did an internal study that nobody really learned about, I think, until the tenant case was a study of. It was supposed to be a 90 day study of the impact of PFAS on monkeys. It only lasted 20 days because all the monkeys died. You'll hear that referred to, but that isn't enough for the EPA or even the American Cancer Society or any other government organization to come out with a statement that PFAS are leading to specific health outcomes, and that remains a pretty big barrier for plaintiffs in all these cases.

Speaker 1: 33:08

So my comparison to asbestos as well. We premature I mean let's hope it's not the case, and it sounds like too is with everything. Things are about dose, but so I guess this is just something that's evolving and part of what makes this litigation complicated. I think it's great, yeah, I mean because it made me think and I'm getting way ahead of things because I've been covering this kind of litigation for so long. It's like, morgan, when you said this stuff is everywhere so you can't even pin it on one company. Then there are those theories or approaches where you go after a market. You all had a market share and something.

Speaker 2: 33:50

Well, and that's what's happened really in Dalton, where they've just sued every manufacturer that has provided these chemicals to every company that's received them, and then also utility they've tried to really cast a very wide net over the whole carpet industry. You may have heard, dalton is known as the carpet capital of the world because they estimates are that they produce over 80, maybe even 90% of the world's flooring, which is hard to imagine, but historically it appears to be true. No-transcript, we'll see how that plays out later. Okay, okay.

Speaker 3: 34:30

Well and by and large, players within an industry use everyone works with by and large the same stuff, for lack of a better word.

Speaker 3: 34:41

They're all using the same chemicals. So how does a plaintiff go about tracing X amount of P-fas that may be found in the water all the way back to that particular defendant? Or how do they apportion it between a group of defendants that they've served, particularly where, if the plaintiff is testing? So, for instance, in the carpet cases, most of the defendants sent their water to a single utility, that's Dalton Utilities. Dalton Utilities would treat the water, spray it onto this 9,000-acre land application system and at some point in time the plaintiff alleges that that water made its way into a river. That made its way down to the plaintiffs in Rome, georgia, and these companies were using these chemicals for many, many years and a lot of the defendants stopped using P-fas altogether in their operations years ago. But because the chemicals are so persistent, you'll still find relics of them essentially leaching into the water, and so it's a real challenge for a plaintiff to identify a P-fas that's made it into the Rome water intake and trace it all the way back up to Dalton to a specific defendant.

Speaker 1: 36:10

Yeah, and you throw in. If somebody's alleging a disease, you can say the disease not. You can say it was caused by something else altogether.

Speaker 3: 36:17

In the carpet cases there haven't been any allegations about personal injury. But you're right In other contexts where if someone were to allege that I'm thinking of firefighters, who are in an extremely dangerous line of work and are constantly encountering things like smoke inhalation and whatnot, it's highly possible that a cancer could be attributed to that and carcinogens from burning material rather than P-fas and the A-triple F that they're using to put out the fires.

Speaker 2: 36:52

Right back to your asbestos comment. I've sat through depositions of plaintiffs. This goes back many, many years. But they get asked questions about if they've ever been in a room or someone was smoking and things like that. Right.

Speaker 1: 37:05

Yeah, so people of a certain age certainly my age were you exposed to anybody smoking? Well, in the 60s, my mom drove us around in a car and it was filled with smoke. We might as well have just been lighting up. What about judgments that? We've seen Any headlines there, David? What can you tell us?

Speaker 2: 37:24

The headlines over the years have really been big settlements. We haven't seen any big cases go all the way to a verdict and a judgment. The Riem and DuPont, principally, have paid eight, nine figures to settle cases before they got to trial. That seems to be the trend. Usually that money, though, is going to fund remediation and new filtration systems. Both of those things are very expensive because PFAS is so persistent again.

Speaker 2: 37:54

The filtration systems are expensive to create and they're also very expensive to maintain, because eventually, even if you put in, they usually use carbon filters to really simplify this that will capture the PFAS as they're treating the water, but those filters now have to be disposed of as well, and they need to be replaced, because once they get filled up, they start failing. So it's a creation and a maintenance, very long-term maintenance problem, and it's all very high cost to maintain those systems. We've seen a lot of settlements for hundreds of millions of dollars to create those systems, but we haven't seen any big verdicts or judgments yet. We haven't had, really since the West Virginia case, a lot of big plaintiffs, personal injury cases that could lead to those sort of judgments and verdicts. I would say that, as I don't want to get too far ahead of ourselves here, but I think that personal injuries do probably the next big frontier of PFAS litigation as regulations and medical studies get further along. I would expect that we'll see that coming in the future.

Speaker 1: 39:08

You said these cases are settling. There haven't been big judgments or anything but so what about the structure of the settlements? Is there anything in the structure of these settlements that might inform other attorneys or in-house counsel?

Speaker 3: 39:21

David called out some of the huge monetary settlements that we've seen in this space. I would just note that I don't personally think that that's the kind of exposure that most defendants face, because really those are the settlements involving the 3M, the Duponts, the big chemical manufacturers that made a lot of money off of making these chemicals in the first place. Now that's not to say that there aren't defendants in the manufacturing space that didn't make a ton of money off of these chemicals as well and that their exposure is really really limited. I think that there's definitely risk there for them too. The more you've used them, the more money. The deeper your pockets, the more money you've made off of them. You're probably going to be expected to pay a little bit more to sell them. But by and large, we're not talking about that kind of liability, for I think most defendants 3M and Dupont have been very public about the fact that they've even earmarked settlement funds for these PFAS lawsuits. That's just not the position that I think most companies find themselves.

Speaker 3: 40:43

I think the other thing I would add about the settlements that I've seen, especially so in the carpet manufacturing cases and this is a matter of public record the plaintiff will occasionally enter into consent decrees with a defendant which the parties will jointly file with the courts, all on the public docket, in which the defendant will agree not to use PFAS in its operations, which doesn't seem that that's not really the heavy lift. The heavy lift is the monitoring requirement. The consent decree will say okay, defendant won't use PFAS in its operations anymore. But to assure the plaintiff that the defendant is complying with the consent decree, the defendant will agree to allow the plaintiff's expert to go on site at the defendant's premises and conduct some testing and monitoring.

Speaker 3: 41:47

And the challenge for that for some defendants is that there's a good chance if you are a company that has used PFAS in the past, even if you stopped using it years and years ago, because the chemicals are so persistent legacy, pfas can leach into your discharge. Even if you thoroughly clean your pipes, there's a good chance that some PFAS is going to make its way into your discharge. So if that's the position that your company is in and you're facing potentially violating a consent decree with the court for failing to basically eliminate all PFAS from your discharge, that's a risky proposition and you also have to be really mindful when you're crafting a consent decree along those lines to ensure that the plaintiff's experts will also test whatever water is going into your facility, because there's a very good chance that it has PFAS in it. So you're getting water with PFAS coming in. You're probably going to see PFAS in your water going out, regardless of whether you're using PFAS or whether you've used PFAS in recent memory.

Speaker 1: 43:09

Let's jump into regulation. So, david, where do things stand with PFAS regulation by states and at the federal level?

Speaker 2: 43:17

Well, as we've probably alluded to or even mentioned so far, one of the facts that people have a hard time grasping is that these chemicals have been around for a long time. As of today, there's no federal regulation to prevent people from using or controlling their use of PFAS. There have been EPA advisories regarding drinking water for many years. In 2016, they came out with a drinking water advisory that was a limit of 70 parts per trillion. Now, to give you an idea of what that is, we like to use swimming pools right, so that, as I've heard, is like a drop of water in a limbic-sized swimming pool. We'll get you over that limit. Now, much more recently, just in March of this year, the EPA came out with a proposed regulation which would actually be a limit and that limit for the original PFAS chemicals PFOS and PFOA, and these are those C8s. The limit would be four parts per trillion and my understanding is that's about one drop in five Olympic-sized swimming pools would put you over that limit. So, on one hand, there haven't been regulations yet, but when they do come, they're going to be extremely restrictive regulations. That and I'm not an environmental specialist, but those folks tell us they don't know anything that's regulated, other than just saying you're basically can't have any of it. Now the problem with saying there's essentially no safe amount is what Morgan mentioned earlier. These chemicals are in our rainwater. They're everywhere, and it's not just our rainwater in Atlanta or big cities. There was a recent study from Stockholm University that measured rainwater and Antarctica and the Tibetan Plateaus some of the most remote places in the world and they had PFOS levels that were 14 times higher than four parts per trillion. It's going to be quite a challenge and very expensive for utilities to meet these standards and it's going to take a lot of money to create those filtration systems to get our drinking water to be in compliance if these regulations come to pass. They still haven't been enacted yet. There's, I guess the comment period is recently ended. There's no specific timetable, but I would be surprised if we don't have actual regulations soon and certainly in the next year. Some of it may depend on what administration is in place.

Speaker 2: 46:01

The Biden administration when they took over and the new EPA administrator at that time, michael Reagan, implemented a PFOS action plan. That has led to these proposed regulations and it is also. There are reporting requirements. They're not saying you can't use it, but if you used PFOS since 2011,. As of recently, you do have to report that to the toxic substances. There's a toxic substances control act that if you're on that list you have to report using it. But again, this is, I think, limited to just chemical manufacturers, not just users, and it doesn't include all the PFOS chemicals. So on the federal level, there's no real regulation. There's some reporting requirements, there's health advisories for drinking water and there's proposed rules.

Speaker 2: 46:55

Now, certainly, states have done a lot more Individual states I think there's 12 states now that actually have regulations for various things and there's a lot of different laws getting passed. There's phased-outs of PFOS in food packaging in many states. There's restrictions on PFOS in other consumer products like carpets and furniture. In many states PFOS is used. I don't think we mentioned the apparel yet, but if you have a jacket that's meant to repel rainwater and so forth, it's likely it's got PFOS or some derivative of it in it, and California and New York have adopted restrictions on using it in apparel, which haven't become effective yet right.

Speaker 2: 47:41

I don't believe they're effective yet. Good point, morgan. There are a lot of these. It's a very fluid situation where there's a lot of things being enacted, a lot of things being proposed. There's a handful of states that are in the process of taking action to eliminate PFOS from cosmetics. There are some states that are putting regulations in place to change the firefighting foam use of PFOS, and there's a lot of states that are setting drinking water limits, like the federal government is doing. There's also a lot of attorneys general that are bringing suits against the manufacturers of PFOS for contaminating the water supplies, and they're relying on state statutes to do that. So it's a very evolving regulatory landscape, both in the federal and state areas.

Speaker 1: 48:31

There are a couple of dots that I'm not connecting. There are no studies, there are no significant studies saying that this is causing any disease.

Speaker 3: 48:40

Well, I think you have to think of it in terms of long versus short chain PFOS. So there are scientific medical studies on the environmental and human health effects of the longer chain PFOS. Those are the C8s, pfoa PFOS that David talked about in his opening remarks. As far as it's clear what impact, if any shorter chain PFOS the C6s, the C4s, what those have on the environment or human health.

Speaker 2: 49:17

In outside of the firefighting foam, I'm not sure where else. C8s are even still being used. So the focus really becomes on the shorter chain and I don't believe there's any real definitive medical studies to connect them with medical issues. But go ahead, morgan, if you want to jump in.

Speaker 3: 49:38

No, that's exactly right. The only thing I was going to add is that Robilot is in the process of bringing another lawsuit, this time with respect to the shorter chain PFOS, and one of the asks that his clients are making is for another scientific or medical study to be impaneled to address and explore really what the impacts of those shorter chain PFOS are on the environment and human health. So kind of a round two, a part two, if you will, of the original study that he obtained way back when he first got involved in Parkersburg.

Speaker 2: 50:19

And if I can maybe anticipate where you might have been going, where at the beginning, you might have been wondering why there aren't regulations. Now you might be wondering why are there going to be regulations? And the persistence that we keep talking about, the fact that they are so difficult to get rid of that alone seems to generate a lot of angst among the medical and scientific community. There's definitely a point of view that anything that persistent that we can't get rid of, that's in all of our blood now everybody's blood and in our rainwater must be bad, and that has led to companies phasing out the C8s and trying to keep reducing the amount of PFOS and it's leading to a lot of people still seeking these regulations and they're definitely going to come to pass.

Speaker 1: 51:14

So I mean it's a key takeaway for me. Is that not all PFOS are equal. Good point, yes.

Speaker 3: 51:21

And I think that's a good point, because there has been such an uptick, I think, in the media about this issue and there really isn't much delineation between PFOA, slash PFOS and the rest of the PFOS chemicals out there. They're over. David mentioned earlier Today I think the count is north of 9,000 different kinds of PFOS, and C8s do not represent the majority of PFOS. But when you hear Stephen Colbert or John Oliver do a piece on PFAS, they don't. There's not a ton of nuance. I mean they're good pieces, but it's not as if they're calling out specific differences between potential threats of CA versus the shorter chain PFOS. And so to David's point.

Speaker 3: 52:14

People hear forever chemicals and their mind goes to okay, it can't be good that this stuff is sticking around in the environment and in our blood. Why don't we go ahead and get ahead of it and try and regulate it? Another thing I would point out we didn't go into great detail on all of the different drinking water standards and whatnot in the various states and also with respect to what's been proposed under federal law, but they center on the C8s. I'm not aware David can correct me if I'm wrong but I'm not aware of drinking water standard or regulation that sweeps the shorter chain PFOS into the mix. I think they're all focused on C8s. It's possible I could stand corrected, but I know, at least as far as the federal regulations go, that's their focus and maybe on a handful, maybe, of next gen PFOS. But by and large you're not looking at regulation of all 9,000 plus PFOS. Your efforts are being focused on the ones that there's scientific and medical studies to suggest that there could be adverse health and human impacts.

Speaker 2: 53:28

The only caveat to that is I know that there's a short list of additional PFOS in addition to PFOA and PFOS that the EPA has proposed drinking water limitations that are higher than four parts per trillion, but still pretty low, and we're still talking about a small subset of all the PFOS out there.

Speaker 3: 53:48

Those are the handful of next-gen chemicals that I was mentioning.

Speaker 1: 53:53

So I'm assuming that the dead cows were allegedly exposed to long chain. That's correct, steve, something that's correct Long chain, pfoa, right, pfoa, okay.

Speaker 3: 54:06

Ufam was making PFOA.

Speaker 1: 54:08

I'm sensitive to that. I grew up in that part of the world. It's a beautiful part of the world. Oh, it's beautiful, don't get me wrong. I grew up on the Ohio side around steel mills and I worked in one in the summers and we just would wake up every morning and it smelled, between our parents, smoking and the stuff coming out of it. Yeah, it's amazing. Many of us are alive. So the last question about these evolving regulations so how are they impacting PFOS claims and defenses.

Speaker 2: 54:37

Well, there's no doubt that plaintiffs' attorneys are emboldened by the attention that PFOS are getting, both on the federal regulatory side and, as Morgan mentioned, just in general, in the press and the media, and a lot of the defenses that we talked about are premised on the lack of regulations. And as regulations come to pass, it's going to make it harder to defend the use and the historical use of them or say that they were safe. Once the government starts regulating them. That gives the impression that they're not safe, of course, and it gives more credibility to PFOS claims. It also is going to generate claims that just aren't available now for violating those regulations.

Speaker 2: 55:20

Clean Water Act and other federal regulatory vehicles for litigation are going to be available much more so now to plaintiffs than they were before. It strengthens the negligence claims. If you're using something that's now regulated and you're using more of it than the regulations allow, that's going to allow people to make claims that you're being negligent per se negligence so you're now going to not have those defenses that Morgan mentioned earlier about not having a duty to folks necessarily if you're violating those regulations. So the impact is going to be more PFOS litigation and, as I said earlier, I think more. Personal injury litigation especially, will be the next frontier.

Speaker 3: 56:07

To the extent that PFOS gets designated under CERCLA. That's going to certainly give plaintiffs another argument that a defendant is required to cover the costs of recovery and remediation of sites where PFOS were discharged into the environment. It becomes a very expensive obligation for a defendant if they're required to clean up a superfund site.

Speaker 1: 56:38

Yeah, I do think that I mentioned that before. When you said somebody had to put through something with a new water treatment plant and people who cover law and litigation and trials and I don't know, we're always thinking, oh, that's nothing compared to a billion dollar settlement or judgment or something, but that stuff's expensive. What did you say? A new treatment plant was.

Speaker 3: 57:01

Over a hundred million dollars.

Speaker 2: 57:02

Yeah, it's always, at least that.

Speaker 3: 57:04

Because they build in maintenance costs too. So you're a tenant for new filters and things like that.

Speaker 1: 57:12

The baffling part of all of this is the fact that it is everywhere. And if you have, as David you were saying, these parts per trillion, combined with the fact that it's everywhere all the time and for a very long time, it's persistent I won't say forever, and you don't know whose it is these are just very complicating factors, it seems to me that would have to be flushed out.

Speaker 2: 57:36

Yeah, a lot of consulting experts are getting a lot of work and will have a lot of work for the foreseeable future.

Speaker 1: 57:43

Through the years when I've written and learned about these things, there was a time when I didn't even wear seatbelts till I started writing about automotive crash liability. The guys would come and spray our lawn and I didn't used to ask them. And then I asked them what it was and they're like oh no, this is safe. And I'm like no, I'm sure it's not. And I still remember that particular case. It was Durzban, which was later banned. But with this I don't know if there are any lifestyle changes.

Speaker 2: 58:10

I'm going to make. The only one that I can actually say we've made in our family is my wife and daughter have made a little more concerted effort not to use cosmetics with PFAS in them, because that can literally get into your skin, and it's just the one thing that we've done, but it's still in all of us.

Speaker 1: 58:30

All right, so I learned a lot from you guys. Thank you both very much, thank you for the chance.

Speaker 1: 58:33

Thanks for giving us the opportunity. We appreciate it. That concludes this episode of the emerging litigation podcast, the co-production of HB litigation, critical legal content, vlex fast case and our friends at LostG Media. I'm Tom Hagey, your host, which would explain why I'm talking. Please feel free to reach out to me if you have ideas for a future episode and don't hesitate to share this with clients, colleagues, friends, animals you may have left at home, teenagers you've irresponsibly left unsupervised, and certain classifications of fruits and vegetables. And if you feel so moved, please give us a rating. Those always help. Thank you for listening.