Guy Temple and Patrick Hodan, shareholders with the Reinhart Boerner Van Deuren law firm, think another asbestos-like litigation environment could be upon us. This time, the culprit is per- and poly-fluoroalkyl substances (PFAS), one of which known as AFFF (A-Triple F) was found in fire-fighting foam that has contaminated groundwater in various communities.
They note the difficulty of successfully prosecuting PFAS lawsuits, which involve considerable scientific expertise and complexity, but a future rise in personal injury cases involving PFAS could impact many companies — not just chemical manufacturers and other users of PFAS — but Wisconsin manufacturers who might have used PFAS compounds in their products or their components. If the scientific research takes us in a certain direction, these businesses might have to take inventory of another sort because PFAS have been under increased scrutiny due to health and monetary consequences, and Environmental Protection Agency actions could lead to further litigation.
Just ask corporate giants like 3M and DuPont who, as the result of a multidistrict litigation [MDL] case in South Carolina, are contributing about $13 billion in a settlement with water suppliers, which amounts to roughly about $3 million per water utility in the U.S. As Hodan explains, that’s likely not enough money for each utility around the country. “Some will get more than that, some will get less,” he explains. “They can either raise rates or they can go after downstream polluters.”
What that means is there are a lot of companies in Wisconsin that, knowing or unknowing, may have sent PFAS into groundwater. Although there have been allegations against certain organizations, we don’t yet know who is liable, but at some point, Hodan believes state and local governments and individuals will go after those companies who have discharged PFAS into groundwater or put them in products.
Temple notes another layer of complexity — supply chains. “Sometimes, these are chemicals that are showing up in products where the components or the product itself is sourced from overseas, and manufacturers are working to get a handle on what is actually in these components that we’re sourcing from China and elsewhere,” he states. “How do we figure that out? Do we need to go component by component and be testing? What can we find out from our supply chain?”
The answers will come in due time, but PFAS compounds can appear in elements of processing where it’s not even an ingredient in the product but used somewhere in the manufacturing process, Temple adds. For example, it might have been used as a processing agent to help release something out of a mold or to help something move smoothly on a production line. Says Temple: “Those are areas where Wisconsin manufacturers will need to look carefully at their supply chain and also at their manufacturing processes to understand whether they have exposure either as a manufacturer of a product that includes this, or potentially as a discharger as a result of PFAS used in our manufacturing facilities. That is probably the next level of risk there for litigation.”
Getting personal
What happens if this becomes more of a personal injury issue? The Reinhart attorneys agree that personal injury cases involving PFAS could have similar outcomes as past asbestos litigation. In all likelihood, there will be a personal injury case, perhaps by a firefighter alleging some type of cancer related to the AFFF, “and that’ll give us a good indication in terms of how those personal injury cases will settle and for what amount,” Hodan states.
Before possible litigation unfolds on the personal injury front, we would need to know all the PFAS that have been released into the environment (and that humans have been exposed to) and the medical risks associated with those PFAS. The plaintiffs’ bar is spending a good deal of money with medical researchers to establish what risk or harm is associated with individual PFAS, and the subsequent litigation environment could unfold over decades.
“You’re going to have to go by the particular PFAS,” Hodan suggests. “Not everyone has been sending an AFFF, which is the type of PFAS that is the subject of the MDL … There are thousands of different types of PFAS. Some are older, some are newer, and so the question will be what does the science show? What does medical science show with respect to the harms created by those individual substances?”
The battle over state-level PFAS regulations is already being waged. Gov. Tony Evers, together with the Wisconsin Department of Natural Resources (DNR), has announced new funding to help communities address PFAS contamination in wastewater. The funds are made available to Wisconsin through the 2022 Bipartisan Infrastructure Law, but Wisconsin Manufacturers and Commerce has called for state standards regulating PFAS compounds to be fair, cost effective, and based on sound, peer-reviewed science.
WMC’s Litigation Center sued the DNR to prevent the agency from enforcing PFAS standards before it had gone through the legally required administrative rulemaking process, which includes seeking input from the public. “How can companies comply with a rule that hasn’t been duly promulgated? It’s like expecting motorists to abide by an unposted speed limit,” says WMC President and CEO Kurt Bauer. “We have also opposed rules that are inconsistent with standards adopted by the EPA, as well as Canadian and EU [European Union] regulators.”
Bauer further states there are more than 6,000 PFAS chemicals known to science, and every smartphone, car, television, and computer, plus consumer products such as nonstick cookware, waterproof apparel, and many food packaging and wrappers have them as well. “As a result, banning PFAS would cause massive disruptions throughout the supply chain for thousands of items consumers use daily,” he states.
