PFAS medical monitoring costs is not a new topic for the litigation – it is something that plaintiffs’ counsel push for either as a damages component to a cause of action or as a term for settlement negotiations in PFAS cases. Yet, to date, very few states allow for medical monitoring costs to be pled as a cause of action unto itself. Instead, states either require an underlying harm to be proven before the courts will consider awarding medical monitoring costs or states have outright rejected the medical monitoring theory of damages altogether. On April 22, 2021, however, the PFAS Accountability Act of 2021 was introduced in the U.S. Senate by Senator Kirsten Gillibrand, while Representatives Madeleine Dean (D-PA) and Dan Kildee (D-MI) introduced the House counterpart (H.R. 2751). The bill seeks to end the divide among courts by explicitly allowing medical monitoring costs for litigants. This is a development that companies need to be concerned about, as it introduces the possibility for additional costs should a company find itself embroiled in PFAS litigation.

PFAS Medical Monitoring Costs – The Current Landscape

The American Law Institute (ALI) is a prestigious legal organization that develops “Restatements” of various laws in the United States, including tort law. The ALI’s work and the Restatements, while not binding on courts, are widely regarded by attorneys, judges and legal scholars as a comprehensive understanding of many of the nuanced parts of legal theories. Through decades of work and revisions, the Restatement (Third) of Torts is now nearing the final stages of completion.

Significantly, the Restatement (Third) is contemplating including recommendations that courts allow plaintiffs to recover monetary damages for medical monitoring expenses, even though the plaintiffs do not have any present bodily harm. With respect to PFAS litigation, medical monitoring costs have been awarded in some states or through settlements to plaintiffs alleging some degree of injury from PFAS. The Restatement (Third) approach, though, opens the door to citizens in the country with no bodily injury from PFAS to participate in free (to the plaintiffs) medical monitoring to ensure that health issues do not arise related to PFAS. Companies that manufactured PFAS would be responsible for funding these multi-million dollar medical monitoring programs.

The ALI’s approach to medical monitoring is a topic that is hotly contested in many legal circles, as awarding medical monitoring costs absent any injury is a highly controversial recommendation that seems to upend decades of tort law. Opponents argue that one of the very tenants of tort law is that there is an injury to the plaintiff – without an injury, there is no tort. Courts are currently split on whether they permit medical monitoring costs to be awarded to plaintiffs without any injury.

PFAS Medical Monitoring Costs Under the PFAS Accountability Act of 2021

The PFAS Accountability Act of 2021 seeks to end the judicial split that exists on the question of whether medical monitoring costs are recoverable if the plaintiff(s) lack a present injury. The bill seeks to establish a federal cause of action for anyone with “significant” PFAS exposure, such that a defendant would be required to undertake and fund PFAS medical monitoring programs.

The bill creates a “presumption of significant exposure” where plaintiffs either (1) prove that PFAS was released into an area where they would have been exposed for a “cumulative period” of at least one year, or (2) offer test results that demonstrate PFAS is or has been detected in their bodies. From there, plaintiffs would not have to prove causation per se; rather, they could merely point to an “association” between the PFAS type at issue and the alleged medical concern. This portion of the bill is aimed at the thousands of newly developed PFAS for which there is insufficient medical or scientific literature to draw causative conclusions. The bill states that courts should be permitted to “lower the standard for scientific proof” to make such determinations.

In its current form, the bill’s cause of action is available against companies that “engaged in any portion of a manufacturing process that created the PFAS to which the individual was significantly exposed” and “foresaw or reasonably should have foreseen that the creation or use of PFAS would result in human exposure to PFAS.”

Impact On Companies

The current form of the PFAS Accountability Act of 2021 focuses on manufacturers of PFAS. However, it is not out of the realm of possibility for either future legislation or amendments to the bill to broaden the scope of companies who should be responsible for funding the medical monitoring programs for PFAS. The litigation is already shifting in such a way that downstream commerce companies (i.e. – companies that did not manufacture PFAS, but utilized PFAS in manufacturing or products) are being named in lawsuits for personal injury and environmental pollution at increasing rates. Allowing a medical monitoring component to the recoverable costs that can pled would significantly raise the risks and potential liability costs to downstream companies.

It is of the utmost importance that businesses along the whole supply chain in various industries evaluate their PFAS risk. Public health and environmental groups urge legislators to regulate PFAS at an ever-increasing pace. Similarly, state level EPA enforcement action is increasing at a several-fold rate every year. Companies that did not manufacture PFAS, but merely utilized PFAS in their manufacturing processes, are therefore becoming targets of costly enforcement actions at rates that continue to multiply year over year. Lawsuits are also filed monthly by citizens or municipalities against companies that are increasingly not PFAS chemical manufacturers.