A recent case filed in the U.S. District Court for the Northern District of West Virginia serves as an illustration of the significant impact plaintiffs' legal theories will have on those targeted as a source or potential source for the PFAS family of chemicals that are found in many significant and useful materials and products used daily. As state and federal policies are being developed concerning these alleged “forever” chemicals, lawsuits are being filed regularly. For example, a lawsuit on behalf of 23 plaintiffs was filed on July 8, 2021, in Federal Court in West Virginia that alleges injuries and damages from chemical substances purportedly found in drinking water and surrounding property in Martinsburg, WV. More specifically, a Complaint with case caption Patricia Miller, et al. v. 3M Company, et al. was filed in the Northern District with Civil Action No. 3:21-CV-105 and assigned to Judge Groh.

The claim references PFAS, PFOS and PFOA, which, in general terms, are chemicals with different molecular structures. PFOA is sometimes referred to as C8 (due to 8 carbons on the PFOA molecule). The Complaint references Aqueous Film Forming Foam (“AFFF”), which is described as a substance used to extinguish petroleum-based fires. The plaintiffs allege that AFFF contains “synthetic, toxic per- and polyfluoroalkyl substances known as PFAS” and that PFAS binds to proteins that persist in the body for long periods of time.

The Complaint alleges:

• the Big Springs Water Filtration Plant is one of two main sources of drinking water in Martinsburg’s municipal water system and is down gradient of the Shepherd Air National Guard Base, which is part of the Eastern Regional Airport in Martinsburg, West Virginia;

• AFFF was used at the 167th Air Wing at Shepherd Field Air National Guard Base;

• “release of AFFF containing PFAS and/or emergency responder protection gear or equipment coated with materials [were] made with or containing PFAS”;

• PFOS testing was done in 2014 and 2016 relative to the City of Martinsburg’s water supply;  

• PFOA was allegedly “detected in levels exceeding the… EPA… Limit of 70 parts per trillion (ppt) in the City of Martinsburg and aquifer that provides water to communities through both municipal water systems and private wells”;

• the “C8 Science Panel” previously announced that human exposure to 0.05 parts per billion or more of one PFAS, PFOA in drinking water for one year or more had “probable links” with certain human diseases;

• dangers from the substances were allegedly known for years;  

• the defendants allegedly designed, marketed, developed, manufactured, distributed, released, trained, used, produced instructional materials, sold and/or otherwise handled and/or used AFFF;

• the plaintiffs assert various health consequences, including cancer;

• “the property of the Plaintiffs have been damaged due to the presence of the [chemical substances] in their homes, soil, surrounding property, and potable water supply”; and 

• Negligence, Battery, Strict Liability: Failure to Warn, Design Defect and Punitive Damages.

Various governmental entities and companies may have questions concerning PFAS, PFOS and PFOA related to water, soil, materials and products.