/>iTwo recent PFAS personal injury lawsuits have grabbed headlines, as the plaintiffs in the respective lawsuits allege that they developed cancer from public drinking water supplies that were contaminated with PFAS. These are not the only examples of such lawsuits, and while the cases to date target PFAS manufacturers, AFFF manufacturers, the cases are notable because of the allegations that drinking water caused the plaintiffs’ cancers and also, in one lawsuit, that one of the named defendants is a public water utility.
It is not farfetched to imagine a future in the not distant future where PFAS personal injuries expand the scope of defendants to include companies that used PFAS and discharged effluent into waterways that fed public water supplies. It is also not unrealistic to imagine water utilities brought into lawsuits such as the ones described in this article seeking contribution for alleged liability from upstream (literally) companies that discharged PFAS-containing effluent into waterways that the utility had no choice but to accept and send to customers for drinking water.
PFAS Personal Injury Lawsuits and Drinking Water
The two most recent lawsuits alleging cancer as a direct result of ingesting drinking water are Robert Stanfield v. 3M, et al filed in Martin County, Florida and Freeman and Barbara Thompson v. 3M, et al filed in the federal court for Washington state. Both are similar in nature in that they allege that their drinking water sources (private drinking wells in the Thompson case, and a public water supply in the Stanfield case) caused thyroid, prostate and other cancers. Both cases bring claims for compensation against various manufacturers of PFAS and AFFF (firefighting foam) manufacturers, with the Stanfield case adding the Martin County Utilities as a defendant to the lawsuit. In short, the lawsuits allege that the manufacturers of PFAS and AFFF knew of the potential harms to human health associated with PFAS, specifically from contamination to drinking water. The claim against the Martin Cunty Utilities alleges that the water utility knew of the presence and harms of PFAS in drinking water in 2016, yet continued to supply PFAS-contaminated drinking water to customers.
Current and Future Implications To Companies
The current lawsuits present interesting trends in the PFAS personal injury legal space, as they represent a growing trend of personal injury claims alleging drinking water as the cause. The cases are narrowly focused on PFAS manufacturers, AFFF makers, and in some instances, water utilities. This is a trend that will continue in the short term. However, companies must be aware that the future, in my view, the trajectory will look quite different. Plaintiffs will broaden the number of defendants they bring into lawsuits alleging injury from drinking water, to include companies that historically discharged or continue to discharge PFAS-containing effluent into waterways that ultimately feed into drinking water sources. With the ever-increasing reporting obligations for companies under federal and state regulations (including TRI and NPDES permit reporting requirements), the evidence that plaintiffs need to develop cases such as the ones that I predict will be easier to develop.
A head-in-the-sand approach to these issues is unwise for companies. Understandably, companies face significant business interruption issues every day that demand the “here and now” attention of its professionals. Of course, there is always the hope that the day never comes that the company will be brought into a PFAS lawsuit and it is difficult to provide a percent prediction that Board members crave before investing in risk deterrence programs. However, attorneys in the environmental law space and toxic torts space have seen trends like this before. One need not look any further than the asbestos litigation for support of the predicted trend I speak of. More pointedly, in the 1970s and 1980s, the asbestos litigation focused almost entirely on the suppliers of raw asbestos fiber and the companies that manufactured thermal insulation (seen as one of the products with the highest levels of potential exposure, akin to AFFF in the current PFAS litigation). Yet, today, the litigation focuses exclusively on a wide variety of industry and product types that used asbestos as one component of materials such as gaskets, electrical wire, floor tiles, and cosmetics. As the asbestos litigation evolved and a broader and broader net was cast, so too, i believe, will the course of PFAS litigation follow in the footsteps of asbestos litigation. It is for this reason that companies absolutely must prepare now for what is to come.
CMBG3 Law is following judicial, legislative, administrative, and scientific developments relating to PFAS. We represent companies of all sizes on PFAS compliance, litigation, and risk management issues, as well as consult with insurers and financial world firms on PFAS issues. We are recognized thought leaders on the subject of PFAS and are regularly contacted by media – including Bloomberg, Wall Street Journal, Washington Post – for our opinions on PFAS issues.
