On February 28, 2024, a class action lawsuit was filed in the Connecticut federal court alleging that PFAS air emissions caused contamination to nearby land to a tissue facility that in the past manufactured diapers. The case, Bethany DePaul, et al v. Kimberly Clark, Case No. 3:24-cv-00271, is notable not only because it is one of the first PFAS class action lawsuits filed that involves allegations of air emissions pollution, but also due to the fact that it shows the extent of risk that manufacturing and industrial companies face today regarding PFAS contamination.

PFAS Air Emissions Lawsuit – DePaul Class Action

The lawsuit focuses on a Kimberly-Clark facility in New Milford, Connecticut that has been in operation since the 1950s. The facility has and continues to manufacture facial tissues and diaper products. The Complaint alleges that diapers traditionally used PFAS in the outer lining of the diaper to prevent liquid from leaking through the diapers. The Complaint also alleges that PFAS have historically been used as wetting agents necessary to convert wood pulp into products like facial tissue and toilet paper. Notably, though, the lawsuit does not claim that Kimberly-Clark’s Connecticut facility directly used PFAS in manufacturing diapers, facial tissue, or toilet paper. Rather, the lawsuit simply alleges the historical context and then states that Kimberly-Clark made all of those products, and adds that when another Kimberly-Clark facility closed in 2020 in California, high levels of PFAS were detected in the surrounding area. Further, plaintiffs allege that the company owned its own landfill for depositing short paper fiber sludge materials, which may have leached PFAS into the surrounding area.

The lawsuit claims that due to the alleged use of PFAS at the New Milford facility, stack emissions that contained PFAS were spread into the surrounding areas for many years. The resulting harms are alleged to be contamination of plaintiffs’ land and drinking water wells, as well as subcelluar changes to the body that may one day manifest in a physical injury or disease. As a result of the alleged harms, Plaintiffs seek damages for land contamination, drinking water contamination, and to establish a medical monitoring program for the ultimate class of plaintiffs approved by the Court.

Significance of Lawsuit for All Manufacturers

The lawsuit is notable for several reasons, one if which is that, according to the Complaint, the defendant may not have used PFAS intentionally in its products or processes (at least in more recent times), yet the company may still be liable for pollution and medical monitoring damages from an unintentional and perhaps unknowing use of PFAS. A common refrain from companies assessing PFAS risks is that “we do not and did not use PFAS, so these risks do not apply to us.” The DePaul lawsuit shows otherwise, as even unknowing use of PFAS (or PFAS that gets into manufacturing processes as a contaminant) may be liable for class action lawsuit damages.

Second, the lawsuit is important because it reflects a growing trend of class action lawsuits for property damages and personal injury related specifically to PFAS in air emissions. While the EPA and states have not yet promulgated enforceable air emissions standards, this has not deterred class action litigation alleging this medium as an exposure and pollution pathway. The reason for this may lie in the simple fact that air emissions are so prevalent in industry that companies that utilize stack emissions as a discharge method may be easy targets for litigation from plaintiffs.

Finally, the case brings claims for medical monitoring relief, yet Connecticut is a state that has historically not recognized medical monitoring as a relief available absent a proven physical injury. Yet, the DePaul lawsuit alleges only subcellular changes to plaintiffs as opposed to an actual manifested injury. This sets up a key legal battle in the case, as the determination of whether cellular changes alone are enough for medical monitoring relief will be essential to the case.