October 31, 2024 • 35 mins
Once again we dive into one of the hottest topics in environmental law right now: PFAS. Specifically, our guest talks about the EPA’s new PFAS Safe Drinking Water Final Rule, which mandates acceptable levels of PFAS in public water systems.
This episode is based on a CLE webinar our guest recorded for HB Litigation a couple months back. Since then, if you’ve been following PFAS developments, you know pushback on the rule is coming from several directions, as our guest predicted. Industry groups, chemical manufacturers, and water utilities alike are challenging the rule as, among other things, arbitrary and capricious and exceeding the EPA’s authority. Water utilities are especially concerned about compliance costs.
On the technical side, there is debate over whether current technology can even reliably detect PFAS at the levels EPA seeks. Also raised are the complexities associated with increased monitoring and lab testing.
Our guest is John P. Gardella, whose 2024 CLE webinar on the subject explored the PFAS litigation landscape, from multidistrict and class action lawsuits to medical monitoring and greenwashing claims. He talks about federal and state regulations that are driving litigation, and offers an outlook for what may be in store in the next few years.
A leading voice in PFAS litigation and recognized thought leader, John is a Shareholder at CMBG3 Law, known for his expertise in environmental and toxic tort litigation. A veteran of more than 75 trials, John chairs the firm’s PFAS, Environmental, Risk Management & Consulting, and ESG practice groups.
This episode comprises audio from John's excellent webinar. If you are interested in the CLE version of the episode, look for it on the West LegalEdcenter. Go to our page to learn more and to use our partner link.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
Welcome to the Emerging Litigation Podcast.
This is a group project drivenby HB Litigation, now part of
Critical Legal Content and VLEXCompanies, fast Case and Law
Street Media.
I'm your host, tom Hagee,longtime litigation news editor
and publisher and currentlitigation enthusiast.
If you wish to reach me, pleasecheck the appropriate links in
(00:23):
the show notes.
This podcast is also acompanion to the Journal of
Emerging Issues and Litigation,for which I serve as
editor-in-chief, published byFastcase Full Court Press.
Now here's today's episode.
If you like what you hear,please give us a rating.
Today we're going to talk aboutone of the hottest topics in
(00:43):
environmental law today, andthat has to do with PFAS.
Specifically, we're going toaddress the EPA's new PFAS safe
drinking water final rule.
Now, since we talked to ourguest, there have been quite a
few challenges to the final rule, as he predicted, and if you've
been following thesedevelopments, you know these
(01:04):
challenges and the landscapeschanging weekly almost New
regulations, new lawsuits,state-level actions reshaping
what it means to ensure safedrinking water across the
country.
Today we're going to addresssome of the big questions
surrounding the EPA's rule,which mandates low limits of
PFAS in public water systems andis and as I said, is sparking
(01:29):
strong pushback from multipleangles.
Industry groups, chemicalmanufacturers and water
utilities alike are challengingthe rule on several fronts,
saying it's arbitrary andcapricious and exceeds the EPA's
authority under the SafeDrinking Water Act.
Challenging federal authority,especially federal agencies,
seems to be in vogue these days.
(01:50):
It's a popular pastime thesedays for those who aren't drawn
to pickleball.
Water utilities are especiallyconcerned about the costs of
upgrading treatment systems tocomply with the law.
On the technical side, there'sa heated debate over whether
current technology can evenreliably detect PFAS at the
levels demanded by the rule, atthe complexities of increased
(02:14):
monitoring and lab testing andchallenges to the EPA's
scientific approach inregulating PFAS.
As a mixture and you've got arule that's under serious
scrutiny.
And to give us a good overviewof the new rule, we recently did
a webinar with John Giardella.
We've had him on the podcastbefore and on webinars before,
(02:35):
and he's done some writing forthe Journal for Emerging Issues
in Litigation too.
He's a leading voice in PFASlitigation.
He's a shareholder at CMBG3 Law, not to be confused with CBGBs.
John's a highly respectedfigure in PFAS, known for his
expertise in environmental andtoxic tort litigation.
(02:55):
He's got more than 75 trialverdicts under his belt.
He chairs the firm's PFAS,environmental Risk Management
and Consulting and ESG practicegroups.
His insights into PFAS riskshave earned him national
recognition as a thought leaderin this area, and I'll let you
in on a little bit of aproduction secret.
(03:17):
This is not, in fact, aninterview.
We took portions of what Johnsaid during his recent webinar
and dropped in questions for me,as if I was asking him.
So there you go.
This is John Giardella.
Hope you enjoy it.
So let's start with the EPA.
That, of course, is the agencythat regulates this area.
Tell us about how they kickedoff their efforts.
Speaker 2 (03:39):
It really all began in 2021 when the EPA put out its
PFAS strategic roadmap and youknow it's worth a read.
It's actually not that dense atall it's about eight pages but
it really lays out exactly wherethe EPA wanted to go with PFAS
and regulations and testing andareas that it was really going
(04:00):
to look into in this three-yearwindow.
Speaker 1 (04:03):
John, what can you tell us about the EPA's goals
with regard to PFAS?
Speaker 2 (04:08):
Throughout the EPA's PFAS roadmap, and even the one
that's the update, is theexplicitly stated goal that the
EPA intends to pursue anycompany or any party that
believes are polluters of theenvironment with respect to PFAS
.
So that's something that is nottechnically litigation per se.
I call it an enforcement action.
(04:30):
But those enforcement actionsby the EPA very much do drive
litigation.
Speaker 1 (04:36):
But from a litigation perspective, what are the
primary areas of focus that theEPA is paying attention to?
Speaker 2 (04:42):
So you know there are two big things there, as anyone
who's been following PFAS knows.
With the EPA there's probablyabout a dozen initiatives that
they've undertaken, but reallythe two big ones are drinking
water and the Superfund law.
Speaker 1 (04:58):
Is there a level of PFAS that's considered safe in
drinking water?
Speaker 2 (05:04):
There had been for many years a advisory level of
70 parts per trillion, but again, advisory levels are simply
what they sound like they'readvisories.
They are not enforceable in anyway.
Of course, with the advent ofthe 2021 roadmap, the EPA
undertook to change thatconsiderably and create
(05:25):
enforceable limits for PFAS indrinking water, and in April of
this year, they put out thefinal rule under the Safe
Drinking Water Act for PFAS.
There are five PFAS that areregulated, and they differ
slightly, but two of them havefour parts per trillion, and
three of them have four partsper trillion and three of them
(05:45):
have 10 parts per trillion.
Now, sort of embedded in whatthe EPA did, aside from, you
know, putting out these partsper trillion limits is
essentially stating that, interms of the maximum contaminant
level goal, which is, you know,sort of a technical way of
saying what the EPA would haveliked to have done if it could
(06:07):
have is that the EPA would havesaid there's no safe level for
any of these particular PFAS.
So, in other words, what theywould have preferred to do is
create a zero parts per trillionlimit.
Science and technology limitedthat, though, because it's not
possible right now to reliablytest below four parts per
trillion for PFOA and PFOS andbelow 10 parts per trillion for
(06:30):
the other three on the screen.
So the technological limitssort of force the EPA's hand,
unless we have the limits thatwe have today.
Speaker 1 (06:40):
Talk about the statement embedded in the EPA
rule that has to do with theharmful effects of PFAS and why
you think it will play a vitalrole in litigation for years to
come.
Speaker 2 (06:49):
Because they're making some key statements here
about the carcinogenicity ofparticular PFAS.
And you know, key to me anywayas an attorney, especially on
the defense side, is thestatement that there's quote no
safe dose below which eitherchemical is considered safe.
If you're familiar with anyother toxic tort litigation, you
(07:11):
know benzene, lead, asbestos,you know PCBs you name it and
personal injury.
Those are the types ofstatements that ring true in the
courtrooms in litigation whenthese cases are litigated.
That's something very much thatplaintiffs' attorneys and their
experts like to parrot duringtheir testimony and you know it
(07:32):
does have jury influence forsure.
When people hear the EPA sayingthat type of thing, it carries
weight.
So it will certainly besomething that will come up in
the PFAS litigation as well.
Speaker 1 (07:44):
Aside from future predictive elements that the EPA
drinking water regulation willimpact, what will be the more
immediate impact?
I take it simply the cost toimplement the required changes
will be very high.
The cost to implement andinstall the necessary technology
, for example.
We're seeing some very hightotals.
During your webinar, you talkedabout the high costs of just
(08:08):
implementing technology to bringa company within compliance
with the regulation.
So talk about what the costsare beyond that.
Speaker 2 (08:16):
When we take it a step further and really dive
deeper into well, what will ittake to clean up sort of
upstream contamination sources,in other words, what industries
and companies may have been orare putting into the water which
ultimately feeds drinking water, and then, in turn, what
(08:38):
litigation may come from that?
That's where you get theseestimates and you know sort of a
middle point of all theestimates that I've seen is this
$200 billion year-over-yearcosts, costs that are not to the
water utilities.
These are costs that are goingto be for those companies should
probably say upstream, becauseit's literally upstream.
(09:01):
You know companies that mayhave been putting PFAS effluent
or water into waterways, butthat's going to be the cost.
As many insurance and waterassociation estimates are
projecting right now to actualcompanies, you can see that's
massive and that's significant.
Speaker 1 (09:22):
What is driving the huge projected costs attached to
this new rule?
Speaker 2 (09:26):
Let's say, a company not a water utility, but a
company that's been dischargingPFAS effluent into waterways
historically, gets a notice fromthe EPA saying that we believe
you're responsible forcontaminating drinking water
sources because of yourdischarge practices.
You need to pay to clean it up.
Contaminating drinking watersources because of your
discharge practices, you need topay to clean it up.
(09:46):
You know, not only will thatcompany be on the hook, but it's
going to in turn turn aroundand try and find other companies
that were doing very similarthings and contributing to the
contamination in the surroundingareas.
Now, oftentimes that islitigation that needs to ensue
in order to bring those partiesinto that action.
(10:07):
And that's where you get these.
You know very, very highlitigation estimates that you
see right here the $200 billionyear over year, so very
significant impact that thisrule is going to have.
Speaker 1 (10:21):
Do you think everybody's just going to be
okay with these rules?
Speaker 2 (10:25):
I do expect legal challenges, and time will just
have to tell in terms of howsuccessful they are.
Speaker 1 (10:31):
Can you give us an illustration of how you see this
playing out in the real world?
Speaker 2 (10:35):
So you know, take any manufacturing company you can
imagine, and for many years hasbeen appropriately discharging
water effluent into streamsadjacent to a facility.
Important to note is that thisis almost always permitted and
has been approved.
Historically, PFAS was notsomething that needed to be
(10:56):
tested and reported in this typeof effluent, so the permits
were granted for effluent withany regulated chemicals.
Today, of course, we are nowregulating or the EPA is now
regulating PFAS, so the pictureis much different.
So, despite these fullypermitted discharges into water,
(11:24):
this manufacturing company wassent a notice of responsibility
by the state arm of the EPA topay for the cleanup of the
drinking water contaminationwith respect to PFAS.
This was started in 2022.
We're about actually not eventwo years into it.
Two years would be the end of2024.
And the company has already hadto pay out $2.5 million in just
kind of initial and preliminarycleanup and technological costs
(11:50):
.
So this doesn't include anysort of legal actions that may
be brought against otherentities.
As I mentioned, exploration ofupstream and other sources of
pollution is something that'svery much at play here and you
know, in the years to come, ifnot the months to come, these
costs will increase due totrying to bring in other parties
(12:12):
as well.
Speaker 1 (12:13):
John, during your webinar you presented a fact
pattern or case study that yousaid illustrates the extremes to
which the government will go toto hold parties responsible for
cleanup.
Can you share that with us?
The facts begin with anincident in 2010.
Speaker 2 (12:32):
There was a small fire at a tire recycling
facility.
Now, due to the nature of thefire or what, the fire
department on handPFAS-containing firefighting
foam was used to put out thefire.
At the time, in 2010, nobodyreally thought anything of
PFAS-containing firefightingfoam was used to put out the
fire.
At the time, in 2010, nobodyreally thought anything of PFAS.
Nobody cared.
The state-level Department ofEnvironmental Protection
(12:56):
examined the site after the fire, didn't care about PFAS and
closed out this case entirely,said everything's fine.
Closed out this case entirely,said everything's fine.
In 2020, 10 years later, whenPFAS and drinking water was a
concern, they went back and theylooked at old firefighting
records and determined that,because of the foam that was
used on this company's site, itpotentially may have contributed
(13:19):
to PFAS contamination in thedrinking water sources nearby.
As a result, this company wassent a notice of violation,
which is similar on the previousscreen to a notice of
responsibility.
And again, this property owneris responsible currently and
this is still ongoing forcleanup costs associated with
(13:41):
this fire, over which it reallyhad no control on its site.
And again, you know other thirdparty litigation and trying to
bring in other responsibleparties is something that's very
much at play in this case studyas well.
So again, this is an extremeexample, but I like to use it
because it does show that wereally need to think about this
(14:03):
impact on litigation andcompanies, not just from sort of
natural quote, unquote targetsthat you might think of like
chemical companies that havebeen discharging into waterways
for decades, or evenmanufacturing and industrial
companies.
The EPA and certain states andtheir EPA arms have certainly
(14:23):
shown over these years with PFASthat they're going to
aggressively look into potentialsources of PFAS contamination
and therefore you need to lookmuch broader than just sort of
what you may and your gut maytell you is sort of a prime
target for this type of action.
Speaker 1 (14:42):
Yeah, you also discussed during the webinar the
Federal Superfund Law, orCERCLA, and its impact on
polluters.
What did you say about that?
Speaker 2 (14:52):
In order for the EPA to actually go after any parties
and get polluters to pay forcleanup costs or parties that
they believe were polluters topay for cleanup costs, they have
to list the chemicals that theywish to remediate as hazardous
substances.
They have to list the chemicalsthat they wish to remediate as
hazardous substances.
Up until last month or, excuseme, april of this year, there
(15:14):
were no PFAS listed under CERCLA.
That changed in April.
Pfoa and PFOS were both listedand, you know, sort of
concurrently with this in thelast several months, the EPA has
put out what you see on thescreen, the ANPRM or Advanced
Notice of Proposed Rulemaking,which basically say that they
(15:35):
wish to list seven additionalPFAS under the Superfund law in
the coming months.
So again, what's the impacthere?
Well, anyone familiar withCircleOut or Superfund site
cleanups knows that they can bequite costly and they're very,
very time consuming.
You know the impact herefinancially is very hard to
(15:58):
measure, mainly because it'sdependent on so many different
factors, first and foremostamong them what the EPA actually
has time, resources and personpower to actually go after for
polluter pursuit and actualcleanup responsibility.
So, nevertheless, you knoweconomic risk professionals in
(16:22):
terms of estimates that I'veseen as well as insurance
company estimates that I've seenare somewhere in.
Insurance company estimates thatI've seen are somewhere in the
range of hundreds of billions ofdollars in costs every year to
companies that are actuallybrought into Circla matters.
And it's a mantra that appliesto Drinky Water and Circla here,
and I'll repeat myself a bit.
(16:42):
But for anyone that is broughtinto a circular action and is to
pay for these quite costlycleanups of a site, the natural
inclination is to try and bringin as many potential parties as
possible who may have alsocontributed to the pollution,
and so that's naturally done,oftentimes through litigation,
(17:04):
through litigation.
So there's significant costsnot only from the cleanup aspect
but from litigation, becausenaturally the more parties you
can bring in, even if they're 1%responsible, for example, well
that's 1% less that you have topay to potentially a hundred
million or hundreds of millionsof dollars for a cleanup site,
(17:24):
which is significant of dollarsfor a cleanup site, which is
significant.
Speaker 1 (17:31):
So that's the discussion at the federal level.
What about the state level andlegislation, proposed
regulations going on there?
Speaker 2 (17:37):
There are literally hundreds of PFAS pieces of
legislation out there that havebeen introduced or proposed over
the last few years, that havebeen introduced or proposed over
the last few years.
You know, every year we seeover 100, if not hundreds of
proposed pieces of legislationat the state levels for PFAS.
Speaker 1 (17:57):
What factors are driving costs and litigation
against companies at the statelevel?
Speaker 2 (18:02):
The first is the drinking water standards.
So before the EPA ever tookaction in April of 2024, there
were just over 20 states thathad their own enforceable
drinking water limits already.
So what that meant and hasmeant over the years is that
those states have been goingafter already.
(18:24):
Parties that it appeals havecontributed to drinking water
contamination with respect toPFAS.
So those notices of violation,notices of responsibility,
they've been sent out.
Parties are having to pay forcosts, they're going into
litigation, they're trying tobring other parties in.
All of those costs that we justtalked about have been
(18:45):
happening at the state level.
Of course, with the EPAregulation, if it is finalized
and passes legal challenges andchallenges in the courts and the
EPA is able to actually pursue,then the standard that the EPA
set automatically applies to all50 states.
So you know, states are allowed, most states are allowed to put
(19:08):
in place limits that are belowthe federal levels if they wish.
But the federal level is ofcourse the bar, the minimum
threshold for all 50 states.
Speaker 1 (19:18):
Once that rule has passed muster and is effective,
so when somebody looks at thestate versus federal levels in
terms of PFAS drinking waterstandards, what challenges arise
for them?
Speaker 2 (19:32):
The problem with the states is that it's basically
wildly divergent in terms ofwhat they're doing.
Some states regulate two PFAS,some are up to 20 in drinking
water.
Some are as low as five partsper trillion.
New York has proposed trying toput it down all the way to two,
and then there's one state Ibelieve it's Minnesota who's as
(19:54):
high as 667,000 parts pertrillion.
So it's really a huge spectrumin terms of what's going on and
it's very difficult forcompanies as a result to always
come into compliance, especiallyif they have footprints in many
different states.
But the point here of thisdiscussion is that all of these
(20:14):
regulations at the state levelfor drinking water are also
driving litigation andlitigation costs in the same way
that we just discussed at thefederal level.
Speaker 1 (20:24):
Got it.
So you've talked about now howchallenging it becomes for
companies to come intocompliance within states, given
the wildly divergent standardsacross them.
What's another challengecompanies are running into and
what's the impact on litigation?
Speaker 2 (20:39):
What I call all products, all PFAS bans and, in
short, what they are, is theseproposed legislations that say
you know, by X date, if you havePFAS in your product and you're
selling it in this state,either the PFAS has to be out
entirely or you cannot sell yourproduct in this state.
Maine and Minnesota are twostates that have already enacted
(21:00):
this rule and there are fourother states, as you see here,
that have proposed it.
I think there will be more.
Obviously, there's a hugeimpact that that type of
legislation will have.
You know, manufacturingdisruption, figuring out how to
even come into compliance.
What does a PFAS mean?
(21:20):
How is it being defined?
How can you get the informationyou need from supply chain to
figure out if you have PFAS?
But you know, critically for usin our discussion is this last
point.
You know, because embedded inall of these states regulations
that are the PFAS banregulations, is a reporting
(21:40):
requirement to the state.
In other words, you have todisclose as a company whether
your product has PFAS in it andwhich types and why and in what
quantity.
That is all public information,or information that can be
fairly easily obtained from astate, and it's going to be an
incredible resource for theplaintiff's bar who are either
(22:01):
looking to bring in the futureproduct liability lawsuits or to
who are pursuing environmentalpollution lawsuits as well.
They have at their fingertipsinformation that they can use
for either type of litigationavenue.
Speaker 1 (22:17):
What can you tell us about the MDL litigation that's
been going on for as long aseight years in South Carolina?
Are there any key takeawaysthere that give us a hint of
what litigation is going to belike going forward?
Speaker 2 (22:30):
So we have, of course , settlements by DuPont, 3m and
Tyco and actually to add to thelist very recently is BASF
recently had their ownsettlement for $316.5 million
and what each of these partieshas done is set up these
settlement funds to try andresolve the portion of the MDL
(22:54):
in which water utilitiesthemselves are suing these
companies again to try and getcosts for the necessary
technology to remediate PFAS atthe water utility itself.
So very, very significantnumbers, obviously.
I mean we're looking in totalat about $15 billion in
(23:16):
available funds for waterutilities.
We'll come back to that in asecond.
But there are two other thingsthat are also going on.
There are other manufacturersthat are left in these water
utility cases.
There is a January 2025 nowtrial date for a bellwether and
(23:36):
those parties are diligentlyworking to try and enter into
their own settlements or go totrial if necessary.
Then there is shortly behindthat and kind of ongoing right
now as we speak, this concurrenttrack of personal injury
bellwethers against all ofdefendants and I want to remind
everyone you know 3M, dupont,tyco, basf they have all settled
(23:59):
, but they did not settle thesepersonal injury cases, so
they're still litigating those.
And so if there are going to besettlements on the personal
injury side.
Expect to see those certainlyin.
I would say probably next yearhonestly.
Maybe sooner, but next year ismore likely because the trial
date is probably going to betowards the end of 2025 for that
(24:22):
bellwether.
So you know, the injury portionof this is really for any
litigators out there where youwant to follow what's going on
in terms of expert reports,expert testimony, causation
issues.
This is really the first timeoutside of the you know 10, 12
years ago now that the famousrob ballott dark waters lawsuit
(24:45):
was brought where personalinjury and causation issues are
going to be directly at issue inthis MDL on the personal injury
track for the Bellwethers.
So a lot is going to come out ofthat and you know a lot is
going to tell plaintiff'sattorneys either how they need
to adjust their strategy movingforward if there are unfavorable
(25:07):
rulings or unfavorable juryverdicts for them, or on the
defense side, where are theweaknesses and what they're
presenting on the causation sideand what will the impact of
that be on more tangentialclaims personal injury claims
that can be brought byplaintiff's attorneys that are
not firefighting foam cases,because all the MDL claims are
(25:31):
firefighting foam related.
You know just the classicexample everyone likes to say is
all right, so could Teflon pansbe the you know, a litigation
track for personal injury?
Sure, in theory, and it's thiskind of evidence, expert issues
that are going to be tested atthe MDL level for personal
injury and causation, that aregoing to drive how that other
(25:54):
type of litigation and personalinjury litigation evolves as we
move forward.
So very, very critical thingsgoing on in the MDL right now.
Speaker 1 (26:03):
Regarding the impact of the MDL and the settlements,
you said in the webinar thatthere's a misnomer that people
should be aware of.
What is that?
Speaker 2 (26:13):
I believe every industry and insurance
industries and whoever you speakto, that even though we have
about $15 billion in approvedsettlements or pending
settlements available to waterutilities, that's really only
(26:37):
going to scratch the surface andwater utilities are going to be
left only getting pennies onthe dollar in terms of what they
need to 100% install technologyto remediate.
Speaker 1 (26:49):
Now what about the other quote you displayed during
the webinar that thesesettlements will lead to claims
and litigation against upstreamcompanies by the water utilities
?
Speaker 2 (27:00):
I believe that's absolutely true, because one of
the quicker ways for waterutilities to consider getting
the rest of the money that theyactually need is to pursue
companies literally upstreamthat have been discharging into
the waterways and thosewaterways have been feeding the
water sources for the waterutilities that they turned into
(27:21):
drinking water.
So that is something very muchto watch.
It's something that I wouldpredict is coming, and it will
be very interesting to see howit plays out in years to come?
Speaker 1 (27:31):
You talked about the MDL.
The other way to handle massclaims, of course, is through
class actions.
What can you tell us about that?
Speaker 2 (27:42):
sometimes sort of small numbers of plaintiffs that
band together and bring claimsjointly claiming land
contamination, propertydevaluation, sometimes personal
injury, etc.
There's a huge uptick in thenumber of these and again this
does not include what's beingfiled in the MDL firefighting
(28:05):
phone claims.
Speaker 1 (28:08):
This is totally separate from that.
These are expensive lawsuits todefend, but you said that there
is another aspect to thesewhich also makes them expensive
and complicated.
What is?
Speaker 2 (28:17):
that the rise of medical monitoring that is
embedded in these lawsuits.
These are, for anyone who's notfamiliar, medical monitoring
claims are ones that say, well,I'm not injured yet, but I think
I might be because of the waythat PFAS in the science has
been linked to certain diseasesand potential injuries and
therefore you need to pay for mymedical treatment, to monitor
(28:41):
to make sure I don't developthose diseases.
And if I do, you need to payfor my treatment.
It is typically estimated amedical monitoring program to
set up is about $15,000 perplaintiff.
So of course, if you have youknow a thousand plaintiffs, you
know maybe not a huge,significant dollar value in
(29:02):
terms of potential costs there.
But if you have 10,000plaintiffs and get a huge class,
significantly different picturein terms of costs, so you can
imagine how that plays out.
But it's something that isgoing to be challenged for sure
legally, because some statesallow medical monitoring, some
don't and some are silent andhaven't ruled on it.
(29:24):
So it's something that,regardless if it's been answered
or not, I would expect eitherside to try and challenge it to
get.
And there's another aspect ofthis litigation that you and I
have talked about before andyou've written about, is the
rise of the consumer fraudclaims it on the market and they
(30:00):
marketed it or sold it orpromoted it to be any kind of
buzzword that you can see hereon the screen or any other
buzzword related to those inquotes here.
However, then the product wastested and it contains PFAS.
And PFAS are none of thosethings.
They're not healthy, they'renot safe, they're not green,
they're not environmentallyfriendly.
So you know you company havedeceived and misled consumers
(30:20):
and committed fraud.
So the damages, of course thatare typically sought are the
full value of each item sold inthe stream of commerce in a
particular time period in aparticular state.
So you know this is potentiallyquite significant, depending on
the market that a company hasin a particular area for a
particular time period.
(30:41):
And you know they are lawsuitsthat need to be defended.
There's been some success indefeating some of them, but some
of them have been allowed toproceed.
So they are certainly not, youknow, all going to go by the
wayside and I would expect theplaintiffs to fine-tune their
complaints moving forward andsee more and more of these cases
(31:04):
being filed.
I think the slide here kind ofsupports what I just said.
You can see some of theindustries that have been
targeted already, but there'sobviously in the past two or
three years a significant uptickin the number of these cases.
But again, you know, eventhough there have been some
(31:25):
recent rulings that have beensuccessful for defense, some of
them have been dismissed withoutprejudice and so they can be
refiled and sort of.
Again the complaint can befine-tuned to adjust for what
the court's ruling was.
So I would expect to see that.
Speaker 1 (31:43):
Well, let's conclude with your outlook for PFAS
litigation.
What do you see coming?
Speaker 2 (31:47):
I fully expect the class action lawsuits are going
to be increasing year over year.
They're potentially a quitelucrative area for plaintiffs'
attorneys to file lawsuits andthey are significant dollar
values in terms of potentialdamages.
At the same time, medicalmonitoring claims are going to
(32:08):
follow along right with that,and so I think they will be
tested in state Supreme Courtsin terms of whether or not they
are a viable claim to bringunder tort law.
And then the litigation and theenforcement actions, as we've
talked about already under theSafe Drinking Water Act and
CERCLA, whether at the federallevel or at the state levels,
will just continue to increaseand will skyrocket if the
(32:31):
federal rules do actually pass.
Beyond that, I would looktowards the personal injury
lawsuits for consumer productsgoing on the rise, and again you
know a lot of what's being doneright now is a wait-and-see
approach with the MDL to see howcausation issues play out there
.
But I would expect by 2026 andbeyond for test cases, if not a
(32:55):
fairly robust PFAS litigation inthis realm consumer products
and personal injury to havereally taken off?
Speaker 1 (33:05):
Why do you think we haven't already seen an increase
in consumer products andpersonal injury claims?
Speaker 2 (33:11):
The reason it hasn't yet and the reason that it needs
a little more time is becauseof what we call dose response.
You know, basically, whilethere is, you know, perhaps
general causation that could bemore easily proved in some ways
for some PFAS.
In other words, you know PFOAis capable of causing X in
(33:33):
general, it's when you get intothe specific causation question
that there's still some gaps.
For the plaintiffs that is, andthat would be more.
Like me, john Gardella, use myTeflon pan for 10 years every
day to cook my meals.
Well, did I get enough of anactual dose from that use for
(33:53):
that frequency to have causedthat disease?
That's alleged?
That's where it becomes tougherFor plaintiffs.
Right now the science is notquite there yet in terms of
figuring that out and puttingout these.
You know sort of doses or safedoses that we have from many
other toxins like asbestos, lead, benzene, whatever it might be.
(34:14):
So you know I'd expect that todevelop on the science side and
in turn the plaintiff's bar willstart filing more of these
cases.
And at the same time, you know,as we've seen, we're going to
see a lot more of the reptiletheory of litigation for PFAS
personal injury, which isbasically a litigation tactic
and style of sort of strikingfear in the hearts of the jurors
(34:36):
that these everyday productsthat we've all been using for
years have had thesequote-unquote deadly chemicals
in them and no one told us andso these companies need to pay.
That's sort of the reptiletheory of legating in a nutshell
.
I would very much expect to seethat play out as it has
especially in the talc and theasbestos litigation in the most
(34:59):
recent years, and to be at playin PFAS litigation as well.
Speaker 1 (35:06):
That concludes this episode of the Emerging
Litigation Podcast, aco-production of HB Litigation,
critical Legal Content VLEX FastCase and our friends at Lostry
Media, legal Content VLexFastcase and our friends at
Lostry Media.
I'm Tom Hagee, your host, whichwould explain why I'm talking.
Please feel free to reach outto me if you have ideas for a
(35:26):
future episode and don'thesitate to share this with
clients, colleagues, friends,animals you may have left at
home, teenagers youirresponsibly left unsupervised.
And if you feel so moved,please give us a rating.
Those always help.
Thank you for listening.
Welcome to the Emerging Litigation Podcast.
This is a group project drivenby HB Litigation, now part of
Critical Legal Content and VLEXCompanies, fast Case and Law
Street Media.
I'm your host, tom Hagee,longtime litigation news editor
and publisher and currentlitigation enthusiast.
If you wish to reach me, pleasecheck the appropriate links in
(00:23):
the show notes.
This podcast is also acompanion to the Journal of
Emerging Issues and Litigation,for which I serve as
editor-in-chief, published byFastcase Full Court Press.
Now here's today's episode.
If you like what you hear,please give us a rating.
Today we're going to talk aboutone of the hottest topics in
(00:43):
environmental law today, andthat has to do with PFAS.
Specifically, we're going toaddress the EPA's new PFAS safe
drinking water final rule.
Now, since we talked to ourguest, there have been quite a
few challenges to the final rule, as he predicted, and if you've
been following thesedevelopments, you know these
(01:04):
challenges and the landscapeschanging weekly almost New
regulations, new lawsuits,state-level actions reshaping
what it means to ensure safedrinking water across the
country.
Today we're going to addresssome of the big questions
surrounding the EPA's rule,which mandates low limits of
PFAS in public water systems andis and as I said, is sparking
(01:29):
strong pushback from multipleangles.
Industry groups, chemicalmanufacturers and water
utilities alike are challengingthe rule on several fronts,
saying it's arbitrary andcapricious and exceeds the EPA's
authority under the SafeDrinking Water Act.
Challenging federal authority,especially federal agencies,
seems to be in vogue these days.
(01:50):
It's a popular pastime thesedays for those who aren't drawn
to pickleball.
Water utilities are especiallyconcerned about the costs of
upgrading treatment systems tocomply with the law.
On the technical side, there'sa heated debate over whether
current technology can evenreliably detect PFAS at the
levels demanded by the rule, atthe complexities of increased
(02:14):
monitoring and lab testing andchallenges to the EPA's
scientific approach inregulating PFAS.
As a mixture and you've got arule that's under serious
scrutiny.
And to give us a good overviewof the new rule, we recently did
a webinar with John Giardella.
We've had him on the podcastbefore and on webinars before,
(02:35):
and he's done some writing forthe Journal for Emerging Issues
in Litigation too.
He's a leading voice in PFASlitigation.
He's a shareholder at CMBG3 Law, not to be confused with CBGBs.
John's a highly respectedfigure in PFAS, known for his
expertise in environmental andtoxic tort litigation.
(02:55):
He's got more than 75 trialverdicts under his belt.
He chairs the firm's PFAS,environmental Risk Management
and Consulting and ESG practicegroups.
His insights into PFAS riskshave earned him national
recognition as a thought leaderin this area, and I'll let you
in on a little bit of aproduction secret.
(03:17):
This is not, in fact, aninterview.
We took portions of what Johnsaid during his recent webinar
and dropped in questions for me,as if I was asking him.
So there you go.
This is John Giardella.
Hope you enjoy it.
So let's start with the EPA.
That, of course, is the agencythat regulates this area.
Tell us about how they kickedoff their efforts.
Speaker 2 (03:39):
It really all began in 2021 when the EPA put out its
PFAS strategic roadmap and youknow it's worth a read.
It's actually not that dense atall it's about eight pages but
it really lays out exactly wherethe EPA wanted to go with PFAS
and regulations and testing andareas that it was really going
(04:00):
to look into in this three-yearwindow.
Speaker 1 (04:03):
John, what can you tell us about the EPA's goals
with regard to PFAS?
Speaker 2 (04:08):
Throughout the EPA's PFAS roadmap, and even the one
that's the update, is theexplicitly stated goal that the
EPA intends to pursue anycompany or any party that
believes are polluters of theenvironment with respect to PFAS
.
So that's something that is nottechnically litigation per se.
I call it an enforcement action.
(04:30):
But those enforcement actionsby the EPA very much do drive
litigation.
Speaker 1 (04:36):
But from a litigation perspective, what are the
primary areas of focus that theEPA is paying attention to?
Speaker 2 (04:42):
So you know there are two big things there, as anyone
who's been following PFAS knows.
With the EPA there's probablyabout a dozen initiatives that
they've undertaken, but reallythe two big ones are drinking
water and the Superfund law.
Speaker 1 (04:58):
Is there a level of PFAS that's considered safe in
drinking water?
Speaker 2 (05:04):
There had been for many years a advisory level of
70 parts per trillion, but again, advisory levels are simply
what they sound like they'readvisories.
They are not enforceable in anyway.
Of course, with the advent ofthe 2021 roadmap, the EPA
undertook to change thatconsiderably and create
(05:25):
enforceable limits for PFAS indrinking water, and in April of
this year, they put out thefinal rule under the Safe
Drinking Water Act for PFAS.
There are five PFAS that areregulated, and they differ
slightly, but two of them havefour parts per trillion, and
three of them have four partsper trillion and three of them
(05:45):
have 10 parts per trillion.
Now, sort of embedded in whatthe EPA did, aside from, you
know, putting out these partsper trillion limits is
essentially stating that, interms of the maximum contaminant
level goal, which is, you know,sort of a technical way of
saying what the EPA would haveliked to have done if it could
(06:07):
have is that the EPA would havesaid there's no safe level for
any of these particular PFAS.
So, in other words, what theywould have preferred to do is
create a zero parts per trillionlimit.
Science and technology limitedthat, though, because it's not
possible right now to reliablytest below four parts per
trillion for PFOA and PFOS andbelow 10 parts per trillion for
(06:30):
the other three on the screen.
So the technological limitssort of force the EPA's hand,
unless we have the limits thatwe have today.
Speaker 1 (06:40):
Talk about the statement embedded in the EPA
rule that has to do with theharmful effects of PFAS and why
you think it will play a vitalrole in litigation for years to
come.
Speaker 2 (06:49):
Because they're making some key statements here
about the carcinogenicity ofparticular PFAS.
And you know, key to me anywayas an attorney, especially on
the defense side, is thestatement that there's quote no
safe dose below which eitherchemical is considered safe.
If you're familiar with anyother toxic tort litigation, you
(07:11):
know benzene, lead, asbestos,you know PCBs you name it and
personal injury.
Those are the types ofstatements that ring true in the
courtrooms in litigation whenthese cases are litigated.
That's something very much thatplaintiffs' attorneys and their
experts like to parrot duringtheir testimony and you know it
(07:32):
does have jury influence forsure.
When people hear the EPA sayingthat type of thing, it carries
weight.
So it will certainly besomething that will come up in
the PFAS litigation as well.
Speaker 1 (07:44):
Aside from future predictive elements that the EPA
drinking water regulation willimpact, what will be the more
immediate impact?
I take it simply the cost toimplement the required changes
will be very high.
The cost to implement andinstall the necessary technology
, for example.
We're seeing some very hightotals.
During your webinar, you talkedabout the high costs of just
(08:08):
implementing technology to bringa company within compliance
with the regulation.
So talk about what the costsare beyond that.
Speaker 2 (08:16):
When we take it a step further and really dive
deeper into well, what will ittake to clean up sort of
upstream contamination sources,in other words, what industries
and companies may have been orare putting into the water which
ultimately feeds drinking water, and then, in turn, what
(08:38):
litigation may come from that?
That's where you get theseestimates and you know sort of a
middle point of all theestimates that I've seen is this
$200 billion year-over-yearcosts, costs that are not to the
water utilities.
These are costs that are goingto be for those companies should
probably say upstream, becauseit's literally upstream.
(09:01):
You know companies that mayhave been putting PFAS effluent
or water into waterways, butthat's going to be the cost.
As many insurance and waterassociation estimates are
projecting right now to actualcompanies, you can see that's
massive and that's significant.
Speaker 1 (09:22):
What is driving the huge projected costs attached to
this new rule?
Speaker 2 (09:26):
Let's say, a company not a water utility, but a
company that's been dischargingPFAS effluent into waterways
historically, gets a notice fromthe EPA saying that we believe
you're responsible forcontaminating drinking water
sources because of yourdischarge practices.
You need to pay to clean it up.
Contaminating drinking watersources because of your
discharge practices, you need topay to clean it up.
(09:46):
You know, not only will thatcompany be on the hook, but it's
going to in turn turn aroundand try and find other companies
that were doing very similarthings and contributing to the
contamination in the surroundingareas.
Now, oftentimes that islitigation that needs to ensue
in order to bring those partiesinto that action.
(10:07):
And that's where you get these.
You know very, very highlitigation estimates that you
see right here the $200 billionyear over year, so very
significant impact that thisrule is going to have.
Speaker 1 (10:21):
Do you think everybody's just going to be
okay with these rules?
Speaker 2 (10:25):
I do expect legal challenges, and time will just
have to tell in terms of howsuccessful they are.
Speaker 1 (10:31):
Can you give us an illustration of how you see this
playing out in the real world?
Speaker 2 (10:35):
So you know, take any manufacturing company you can
imagine, and for many years hasbeen appropriately discharging
water effluent into streamsadjacent to a facility.
Important to note is that thisis almost always permitted and
has been approved.
Historically, PFAS was notsomething that needed to be
(10:56):
tested and reported in this typeof effluent, so the permits
were granted for effluent withany regulated chemicals.
Today, of course, we are nowregulating or the EPA is now
regulating PFAS, so the pictureis much different.
So, despite these fullypermitted discharges into water,
(11:24):
this manufacturing company wassent a notice of responsibility
by the state arm of the EPA topay for the cleanup of the
drinking water contaminationwith respect to PFAS.
This was started in 2022.
We're about actually not eventwo years into it.
Two years would be the end of2024.
And the company has already hadto pay out $2.5 million in just
kind of initial and preliminarycleanup and technological costs
(11:50):
.
So this doesn't include anysort of legal actions that may
be brought against otherentities.
As I mentioned, exploration ofupstream and other sources of
pollution is something that'svery much at play here and you
know, in the years to come, ifnot the months to come, these
costs will increase due totrying to bring in other parties
(12:12):
as well.
Speaker 1 (12:13):
John, during your webinar you presented a fact
pattern or case study that yousaid illustrates the extremes to
which the government will go toto hold parties responsible for
cleanup.
Can you share that with us?
The facts begin with anincident in 2010.
Speaker 2 (12:32):
There was a small fire at a tire recycling
facility.
Now, due to the nature of thefire or what, the fire
department on handPFAS-containing firefighting
foam was used to put out thefire.
At the time, in 2010, nobodyreally thought anything of
PFAS-containing firefightingfoam was used to put out the
fire.
At the time, in 2010, nobodyreally thought anything of PFAS.
Nobody cared.
The state-level Department ofEnvironmental Protection
(12:56):
examined the site after the fire, didn't care about PFAS and
closed out this case entirely,said everything's fine.
Closed out this case entirely,said everything's fine.
In 2020, 10 years later, whenPFAS and drinking water was a
concern, they went back and theylooked at old firefighting
records and determined that,because of the foam that was
used on this company's site, itpotentially may have contributed
(13:19):
to PFAS contamination in thedrinking water sources nearby.
As a result, this company wassent a notice of violation,
which is similar on the previousscreen to a notice of
responsibility.
And again, this property owneris responsible currently and
this is still ongoing forcleanup costs associated with
(13:41):
this fire, over which it reallyhad no control on its site.
And again, you know other thirdparty litigation and trying to
bring in other responsibleparties is something that's very
much at play in this case studyas well.
So again, this is an extremeexample, but I like to use it
because it does show that wereally need to think about this
(14:03):
impact on litigation andcompanies, not just from sort of
natural quote, unquote targetsthat you might think of like
chemical companies that havebeen discharging into waterways
for decades, or evenmanufacturing and industrial
companies.
The EPA and certain states andtheir EPA arms have certainly
(14:23):
shown over these years with PFASthat they're going to
aggressively look into potentialsources of PFAS contamination
and therefore you need to lookmuch broader than just sort of
what you may and your gut maytell you is sort of a prime
target for this type of action.
Speaker 1 (14:42):
Yeah, you also discussed during the webinar the
Federal Superfund Law, orCERCLA, and its impact on
polluters.
What did you say about that?
Speaker 2 (14:52):
In order for the EPA to actually go after any parties
and get polluters to pay forcleanup costs or parties that
they believe were polluters topay for cleanup costs, they have
to list the chemicals that theywish to remediate as hazardous
substances.
They have to list the chemicalsthat they wish to remediate as
hazardous substances.
Up until last month or, excuseme, april of this year, there
(15:14):
were no PFAS listed under CERCLA.
That changed in April.
Pfoa and PFOS were both listedand, you know, sort of
concurrently with this in thelast several months, the EPA has
put out what you see on thescreen, the ANPRM or Advanced
Notice of Proposed Rulemaking,which basically say that they
(15:35):
wish to list seven additionalPFAS under the Superfund law in
the coming months.
So again, what's the impacthere?
Well, anyone familiar withCircleOut or Superfund site
cleanups knows that they can bequite costly and they're very,
very time consuming.
You know the impact herefinancially is very hard to
(15:58):
measure, mainly because it'sdependent on so many different
factors, first and foremostamong them what the EPA actually
has time, resources and personpower to actually go after for
polluter pursuit and actualcleanup responsibility.
So, nevertheless, you knoweconomic risk professionals in
(16:22):
terms of estimates that I'veseen as well as insurance
company estimates that I've seenare somewhere in.
Insurance company estimates thatI've seen are somewhere in the
range of hundreds of billions ofdollars in costs every year to
companies that are actuallybrought into Circla matters.
And it's a mantra that appliesto Drinky Water and Circla here,
and I'll repeat myself a bit.
(16:42):
But for anyone that is broughtinto a circular action and is to
pay for these quite costlycleanups of a site, the natural
inclination is to try and bringin as many potential parties as
possible who may have alsocontributed to the pollution,
and so that's naturally done,oftentimes through litigation,
(17:04):
through litigation.
So there's significant costsnot only from the cleanup aspect
but from litigation, becausenaturally the more parties you
can bring in, even if they're 1%responsible, for example, well
that's 1% less that you have topay to potentially a hundred
million or hundreds of millionsof dollars for a cleanup site,
(17:24):
which is significant of dollarsfor a cleanup site, which is
significant.
Speaker 1 (17:31):
So that's the discussion at the federal level.
What about the state level andlegislation, proposed
regulations going on there?
Speaker 2 (17:37):
There are literally hundreds of PFAS pieces of
legislation out there that havebeen introduced or proposed over
the last few years, that havebeen introduced or proposed over
the last few years.
You know, every year we seeover 100, if not hundreds of
proposed pieces of legislationat the state levels for PFAS.
Speaker 1 (17:57):
What factors are driving costs and litigation
against companies at the statelevel?
Speaker 2 (18:02):
The first is the drinking water standards.
So before the EPA ever tookaction in April of 2024, there
were just over 20 states thathad their own enforceable
drinking water limits already.
So what that meant and hasmeant over the years is that
those states have been goingafter already.
(18:24):
Parties that it appeals havecontributed to drinking water
contamination with respect toPFAS.
So those notices of violation,notices of responsibility,
they've been sent out.
Parties are having to pay forcosts, they're going into
litigation, they're trying tobring other parties in.
All of those costs that we justtalked about have been
(18:45):
happening at the state level.
Of course, with the EPAregulation, if it is finalized
and passes legal challenges andchallenges in the courts and the
EPA is able to actually pursue,then the standard that the EPA
set automatically applies to all50 states.
So you know, states are allowed, most states are allowed to put
(19:08):
in place limits that are belowthe federal levels if they wish.
But the federal level is ofcourse the bar, the minimum
threshold for all 50 states.
Speaker 1 (19:18):
Once that rule has passed muster and is effective,
so when somebody looks at thestate versus federal levels in
terms of PFAS drinking waterstandards, what challenges arise
for them?
Speaker 2 (19:32):
The problem with the states is that it's basically
wildly divergent in terms ofwhat they're doing.
Some states regulate two PFAS,some are up to 20 in drinking
water.
Some are as low as five partsper trillion.
New York has proposed trying toput it down all the way to two,
and then there's one state Ibelieve it's Minnesota who's as
(19:54):
high as 667,000 parts pertrillion.
So it's really a huge spectrumin terms of what's going on and
it's very difficult forcompanies as a result to always
come into compliance, especiallyif they have footprints in many
different states.
But the point here of thisdiscussion is that all of these
(20:14):
regulations at the state levelfor drinking water are also
driving litigation andlitigation costs in the same way
that we just discussed at thefederal level.
Speaker 1 (20:24):
Got it.
So you've talked about now howchallenging it becomes for
companies to come intocompliance within states, given
the wildly divergent standardsacross them.
What's another challengecompanies are running into and
what's the impact on litigation?
Speaker 2 (20:39):
What I call all products, all PFAS bans and, in
short, what they are, is theseproposed legislations that say
you know, by X date, if you havePFAS in your product and you're
selling it in this state,either the PFAS has to be out
entirely or you cannot sell yourproduct in this state.
Maine and Minnesota are twostates that have already enacted
(21:00):
this rule and there are fourother states, as you see here,
that have proposed it.
I think there will be more.
Obviously, there's a hugeimpact that that type of
legislation will have.
You know, manufacturingdisruption, figuring out how to
even come into compliance.
What does a PFAS mean?
(21:20):
How is it being defined?
How can you get the informationyou need from supply chain to
figure out if you have PFAS?
But you know, critically for usin our discussion is this last
point.
You know, because embedded inall of these states regulations
that are the PFAS banregulations, is a reporting
(21:40):
requirement to the state.
In other words, you have todisclose as a company whether
your product has PFAS in it andwhich types and why and in what
quantity.
That is all public information,or information that can be
fairly easily obtained from astate, and it's going to be an
incredible resource for theplaintiff's bar who are either
(22:01):
looking to bring in the futureproduct liability lawsuits or to
who are pursuing environmentalpollution lawsuits as well.
They have at their fingertipsinformation that they can use
for either type of litigationavenue.
Speaker 1 (22:17):
What can you tell us about the MDL litigation that's
been going on for as long aseight years in South Carolina?
Are there any key takeawaysthere that give us a hint of
what litigation is going to belike going forward?
Speaker 2 (22:30):
So we have, of course , settlements by DuPont, 3m and
Tyco and actually to add to thelist very recently is BASF
recently had their ownsettlement for $316.5 million
and what each of these partieshas done is set up these
settlement funds to try andresolve the portion of the MDL
(22:54):
in which water utilitiesthemselves are suing these
companies again to try and getcosts for the necessary
technology to remediate PFAS atthe water utility itself.
So very, very significantnumbers, obviously.
I mean we're looking in totalat about $15 billion in
(23:16):
available funds for waterutilities.
We'll come back to that in asecond.
But there are two other thingsthat are also going on.
There are other manufacturersthat are left in these water
utility cases.
There is a January 2025 nowtrial date for a bellwether and
(23:36):
those parties are diligentlyworking to try and enter into
their own settlements or go totrial if necessary.
Then there is shortly behindthat and kind of ongoing right
now as we speak, this concurrenttrack of personal injury
bellwethers against all ofdefendants and I want to remind
everyone you know 3M, dupont,tyco, basf they have all settled
(23:59):
, but they did not settle thesepersonal injury cases, so
they're still litigating those.
And so if there are going to besettlements on the personal
injury side.
Expect to see those certainlyin.
I would say probably next yearhonestly.
Maybe sooner, but next year ismore likely because the trial
date is probably going to betowards the end of 2025 for that
(24:22):
bellwether.
So you know, the injury portionof this is really for any
litigators out there where youwant to follow what's going on
in terms of expert reports,expert testimony, causation
issues.
This is really the first timeoutside of the you know 10, 12
years ago now that the famousrob ballott dark waters lawsuit
(24:45):
was brought where personalinjury and causation issues are
going to be directly at issue inthis MDL on the personal injury
track for the Bellwethers.
So a lot is going to come out ofthat and you know a lot is
going to tell plaintiff'sattorneys either how they need
to adjust their strategy movingforward if there are unfavorable
(25:07):
rulings or unfavorable juryverdicts for them, or on the
defense side, where are theweaknesses and what they're
presenting on the causation sideand what will the impact of
that be on more tangentialclaims personal injury claims
that can be brought byplaintiff's attorneys that are
not firefighting foam cases,because all the MDL claims are
(25:31):
firefighting foam related.
You know just the classicexample everyone likes to say is
all right, so could Teflon pansbe the you know, a litigation
track for personal injury?
Sure, in theory, and it's thiskind of evidence, expert issues
that are going to be tested atthe MDL level for personal
injury and causation, that aregoing to drive how that other
(25:54):
type of litigation and personalinjury litigation evolves as we
move forward.
So very, very critical thingsgoing on in the MDL right now.
Speaker 1 (26:03):
Regarding the impact of the MDL and the settlements,
you said in the webinar thatthere's a misnomer that people
should be aware of.
What is that?
Speaker 2 (26:13):
I believe every industry and insurance
industries and whoever you speakto, that even though we have
about $15 billion in approvedsettlements or pending
settlements available to waterutilities, that's really only
(26:37):
going to scratch the surface andwater utilities are going to be
left only getting pennies onthe dollar in terms of what they
need to 100% install technologyto remediate.
Speaker 1 (26:49):
Now what about the other quote you displayed during
the webinar that thesesettlements will lead to claims
and litigation against upstreamcompanies by the water utilities
?
Speaker 2 (27:00):
I believe that's absolutely true, because one of
the quicker ways for waterutilities to consider getting
the rest of the money that theyactually need is to pursue
companies literally upstreamthat have been discharging into
the waterways and thosewaterways have been feeding the
water sources for the waterutilities that they turned into
(27:21):
drinking water.
So that is something very muchto watch.
It's something that I wouldpredict is coming, and it will
be very interesting to see howit plays out in years to come?
Speaker 1 (27:31):
You talked about the MDL.
The other way to handle massclaims, of course, is through
class actions.
What can you tell us about that?
Speaker 2 (27:42):
sometimes sort of small numbers of plaintiffs that
band together and bring claimsjointly claiming land
contamination, propertydevaluation, sometimes personal
injury, etc.
There's a huge uptick in thenumber of these and again this
does not include what's beingfiled in the MDL firefighting
(28:05):
phone claims.
Speaker 1 (28:08):
This is totally separate from that.
These are expensive lawsuits todefend, but you said that there
is another aspect to thesewhich also makes them expensive
and complicated.
What is?
Speaker 2 (28:17):
that the rise of medical monitoring that is
embedded in these lawsuits.
These are, for anyone who's notfamiliar, medical monitoring
claims are ones that say, well,I'm not injured yet, but I think
I might be because of the waythat PFAS in the science has
been linked to certain diseasesand potential injuries and
therefore you need to pay for mymedical treatment, to monitor
(28:41):
to make sure I don't developthose diseases.
And if I do, you need to payfor my treatment.
It is typically estimated amedical monitoring program to
set up is about $15,000 perplaintiff.
So of course, if you have youknow a thousand plaintiffs, you
know maybe not a huge,significant dollar value in
(29:02):
terms of potential costs there.
But if you have 10,000plaintiffs and get a huge class,
significantly different picturein terms of costs, so you can
imagine how that plays out.
But it's something that isgoing to be challenged for sure
legally, because some statesallow medical monitoring, some
don't and some are silent andhaven't ruled on it.
(29:24):
So it's something that,regardless if it's been answered
or not, I would expect eitherside to try and challenge it to
get.
And there's another aspect ofthis litigation that you and I
have talked about before andyou've written about, is the
rise of the consumer fraudclaims it on the market and they
(30:00):
marketed it or sold it orpromoted it to be any kind of
buzzword that you can see hereon the screen or any other
buzzword related to those inquotes here.
However, then the product wastested and it contains PFAS.
And PFAS are none of thosethings.
They're not healthy, they'renot safe, they're not green,
they're not environmentallyfriendly.
So you know you company havedeceived and misled consumers
(30:20):
and committed fraud.
So the damages, of course thatare typically sought are the
full value of each item sold inthe stream of commerce in a
particular time period in aparticular state.
So you know this is potentiallyquite significant, depending on
the market that a company hasin a particular area for a
particular time period.
(30:41):
And you know they are lawsuitsthat need to be defended.
There's been some success indefeating some of them, but some
of them have been allowed toproceed.
So they are certainly not, youknow, all going to go by the
wayside and I would expect theplaintiffs to fine-tune their
complaints moving forward andsee more and more of these cases
(31:04):
being filed.
I think the slide here kind ofsupports what I just said.
You can see some of theindustries that have been
targeted already, but there'sobviously in the past two or
three years a significant uptickin the number of these cases.
But again, you know, eventhough there have been some
(31:25):
recent rulings that have beensuccessful for defense, some of
them have been dismissed withoutprejudice and so they can be
refiled and sort of.
Again the complaint can befine-tuned to adjust for what
the court's ruling was.
So I would expect to see that.
Speaker 1 (31:43):
Well, let's conclude with your outlook for PFAS
litigation.
What do you see coming?
Speaker 2 (31:47):
I fully expect the class action lawsuits are going
to be increasing year over year.
They're potentially a quitelucrative area for plaintiffs'
attorneys to file lawsuits andthey are significant dollar
values in terms of potentialdamages.
At the same time, medicalmonitoring claims are going to
(32:08):
follow along right with that,and so I think they will be
tested in state Supreme Courtsin terms of whether or not they
are a viable claim to bringunder tort law.
And then the litigation and theenforcement actions, as we've
talked about already under theSafe Drinking Water Act and
CERCLA, whether at the federallevel or at the state levels,
will just continue to increaseand will skyrocket if the
(32:31):
federal rules do actually pass.
Beyond that, I would looktowards the personal injury
lawsuits for consumer productsgoing on the rise, and again you
know a lot of what's being doneright now is a wait-and-see
approach with the MDL to see howcausation issues play out there
.
But I would expect by 2026 andbeyond for test cases, if not a
(32:55):
fairly robust PFAS litigation inthis realm consumer products
and personal injury to havereally taken off?
Speaker 1 (33:05):
Why do you think we haven't already seen an increase
in consumer products andpersonal injury claims?
Speaker 2 (33:11):
The reason it hasn't yet and the reason that it needs
a little more time is becauseof what we call dose response.
You know, basically, whilethere is, you know, perhaps
general causation that could bemore easily proved in some ways
for some PFAS.
In other words, you know PFOAis capable of causing X in
(33:33):
general, it's when you get intothe specific causation question
that there's still some gaps.
For the plaintiffs that is, andthat would be more.
Like me, john Gardella, use myTeflon pan for 10 years every
day to cook my meals.
Well, did I get enough of anactual dose from that use for
(33:53):
that frequency to have causedthat disease?
That's alleged?
That's where it becomes tougherFor plaintiffs.
Right now the science is notquite there yet in terms of
figuring that out and puttingout these.
You know sort of doses or safedoses that we have from many
other toxins like asbestos, lead, benzene, whatever it might be.
(34:14):
So you know I'd expect that todevelop on the science side and
in turn the plaintiff's bar willstart filing more of these
cases.
And at the same time, you know,as we've seen, we're going to
see a lot more of the reptiletheory of litigation for PFAS
personal injury, which isbasically a litigation tactic
and style of sort of strikingfear in the hearts of the jurors
(34:36):
that these everyday productsthat we've all been using for
years have had thesequote-unquote deadly chemicals
in them and no one told us andso these companies need to pay.
That's sort of the reptiletheory of legating in a nutshell
.
I would very much expect to seethat play out as it has
especially in the talc and theasbestos litigation in the most
(34:59):
recent years, and to be at playin PFAS litigation as well.
Speaker 1 (35:06):
That concludes this episode of the Emerging
Litigation Podcast, aco-production of HB Litigation,
critical Legal Content VLEX FastCase and our friends at Lostry
Media, legal Content VLexFastcase and our friends at
Lostry Media.
I'm Tom Hagee, your host, whichwould explain why I'm talking.
Please feel free to reach outto me if you have ideas for a
(35:26):
future episode and don'thesitate to share this with
clients, colleagues, friends,animals you may have left at
home, teenagers youirresponsibly left unsupervised.
And if you feel so moved,please give us a rating.
Those always help.
Thank you for listening.
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