On November 10, 2021, counsel for plaintiffs in a Vermont PFAS lawsuit filed a Memorandum In Support of Motion For Preliminary Approval of Class Action Settlement seeking Court approval of a settlement agreement of over $30 million to resolve claims of drinking water pollution for residents of Bennington, Vermont. The case was filed several years ago and saw several contentious issues argued before the Court, including motions to quash the testimony of a corporate whistleblower. The Vermont PFAS settlement is noteworthy, though, because several million dollars of the proposed settlement will be allocated to a medical monitoring program for citizens of the area. The Vermont PFAS settlement provides an interesting preview of the millions of dollars in medical monitoring costs that plaintiffs will likely increasingly seek from courts across the country.

The Vermont PFAS Settlement

A lawsuit was filed in 2016 against the Saint-Gobain Performance Plastics Corp., in which it was alleged that the company produced fabrics coated with PFAS (specifically, PFOA) from 1969 – 2002. The discharge and effluent from the manufacturing process allegedly contaminated local drinking water sources, including drinking wells in the Bennington, Vermont region.

Saint-Gobain and plaintiffs reached an agreement to resolve the allegations last week. Under the agreement, Saint-Gobain would pay $26.2 million to residents constituting case class members for property damage and devaluation. An additional $6 million would be set aside for a medical monitoring program for any class member who allegedly drank contaminated well water to provide regular medical exams and blood tests to detect any PFAS-related diseases at the earliest possible stage.

Several million more dollars would be set aside to reimburse plaintiffs’ counsel for costs and fees. The proposed settlement must first be approved by the Court.

Future Impact On Medical Monitoring Claims

While the Vermont PFAS settlement is but one of an increasing number of settlements related to PFAS contamination of drinking water or soil, the notable portion of the settlement is the $6 million for medical monitoring. While nationwide, courts remain divided as to whether medical monitoring costs are recoverable in a lawsuit (and if so, whether an actual injury must first be alleged, or if the damages can be awarded to try to prevent injury from occurring), there are an increasing number of lawsuits nationwide that are pushing the envelope to try to get otherwise reluctant courts to award medical monitoring damages for PFAS cases. As state statutes and court decisions naturally do not remain stagnant, both the legislative and judicial branches of state governments could be vehicles for plaintiffs’ counsel looking to effectuate change with respect to medical monitoring laws.

Of concern to many companies is the fact that some proponents of medical monitoring damages argue that relatively little must be alleged or proven in order to obtain monitoring cost damages. With respect to PFAS, which are seen as ubiquitous and difficult to remove from the environment, the limited proof that may need to offered may be as simple as proving that PFAS are present in the drinking water or soil of the class of citizens that brought the lawsuit. Many companies will be in a position whereby they need to determine the financial feasibility of being able to fund a medical monitoring settlement as opposed to defend the allegations brought in the lawsuit.

Regardless, companies with present-day or legacy PFAS concerns for environmental pollution must carefully monitor state court developments with respect to medical monitoring damages, as well as scholarly legal publications that examine the medical monitoring issue. As more courts permit some form of medical monitoring award, companies must consider these potential lawsuits as future risks.