Partner Kyle Johnson and counsel Anthony Boccamazzo joined HRP's "PFAS Pulse" podcast to discuss the future of class-action cases against companies that have exposed people to per- and polyfluoroalkyl substances (PFAS).
Class-action, toxic tort cases related to exposure to chemicals that later had an adverse effect on the health of large groups of people first came about after the Manhattan Project – the top-secret government program aimed at developing nuclear weapons before Nazi Germany during World War II – Johnson said. In the 1970s and 1980s, asbestos cases began to emerge, closely followed by Agent Orange cases, where Vietnam-era soldiers were becoming sick after handling and otherwise being exposed to the chemical.
"In each of those cases, you have cancer clusters, which is sort of the driver for those classes," Johnson said. "There's actually a PFAS class-action from the early 2000s in West Virginia ... I think there were 70,000 plaintiffs who had tainted drinking water, but then there was around 3,500 personal injury plaintiffs. So a smaller body of plaintiffs, but that, I think is pretty informative on how this is going to evolve in the coming years."
Unlike those previous class-action suits involving Agent Orange and asbestos, PFAS exposure is not related to an occupational hazard, it's everywhere, Boccamazzo said.
"It's not necessarily just an occupational hazard, it started off mainly viewed as kind of a water hazard, from a regulatory aspect and the initial lawsuits [related to] contaminated water," he said. "However, it's expanding everywhere, because PFAS has been used in so many different ways that it's hard to kind of view where the litigation is going to go from here."
The so-called forever chemicals resist grease, oil, water and heat, which exposure to, in some forms, have been associated with serious health effects, including cancer. The chemicals were introduced in the 1940s and are now in hundreds of products including stain- and water-resistant fabrics, cleaning products, paints and fire-fighting foams, as well as some cookware, food packaging and food processing equipment.
"The fact that it is everywhere, it's going to be really hard for plaintiffs to point to a particular defendant and say 'my PFAS came from you,'" Johnson said. "All these plaintiffs are not going to have standing, because they can't point to a particular defendant that put the PFAS into their blood. I think for that reason, personal injury cases, like you see with asbestos, or like you see with some of these other historical toxic torts are going to be a lot harder to prove."
The "PFAS Pulse" podcast is a companion piece to HRP's newsletter, which offers insight into the latest issues in the field. HRP Associates Inc. is a multidisciplinary environmental and engineering consulting firm.
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