Last week, the New Jersey state court certified the Tomas Vera et al. v. Middlesex Water Co. (MID-L-6306-21, Superior Court of New Jersey, Middlesex County) case as a class action lawsuit. The plaintiffs are seeking damages from the local water company, Middlesex Water Co., stemming from PFAS contamination of the county’s drinking water supply. The PFAS class action lawsuit is an interesting test case that should be closely followed by any water utility grappling with PFAS remediation issues.

PFAS Class Action Lawsuit

In the Middlesex Water Co. case, the water utility at one point mailed local residents a letter indicating that the drinking water sources were contaminated with unsafe levels of PFOA. The plaintiffs followed the advice of the water company and used bottled water, bought water filters, and visited their doctors for medical monitoring, all of which was paid for out-of-pocket. It is these costs that they seek in damages from the water company.

Middlesex Water Co. challenged the class certification, arguing in essence that the plaintiffs claims are too dissimilar to proceed as a class. This is due to the fact that different plaintiffs may not have followed all of the remedial measures advised by Middlesex Water Co., some may have followed them all, some may have incurred more expenses than others, and the facts of each plaintiffs’ case were too different. The state court judge disagreed and found that the plaintiffs had met the necessary requirements for class certification.

Lessons For Water Utilities

Prior to the lawsuit, Middlesex Water Co. began construction on a new water plant to filter and remediate PFOA from area drinking water sources. The utility also brought its own separate lawsuit against PFOA chemical manufacturer 3M to recoup the costs of the new water plant, and any damages stemming from the Tomas Vera lawsuit could theoretically be added to the pending lawsuit against 3M.

Of importance for water utilities across the nation is the fact that the Middlesex Water Co. took many measures to alert citizens to the PFOA issues and provided solutions until the new water treatment plant construction could finish in 2023. Nevertheless, the company finds itself embroiled in costly litigation. While each state handles class action certifications and damages issues differently, the case may cause some water utilities to consider offering to reimburse citizens for out-of-pocket expenses up front. Other companies may feel that the alleged classes in future similar lawsuits should not be granted class certification and may challenge the certification request as Middlesex Water Co. did. Regardless of the course of action chosen, though, the important takeaway is that water utilities must absolutely consider ramifications of sending out notice letters like the one sent by Middlesex Water Co. in order to properly plan for future financial issues.