The Future of Toxic Tort Litigation Surrounding PFOA and PFOS

Modern society benefits from the use of non-stick cookware, stain-proof carpets and clothing, long-wear makeup products, cardboard food packaging, and firefighting foams.  However, these products often contain chemical coatings of PFOA and PFOS, two types of PFA chemicals which allow the products to resist “oils, stains, water, and heat.”  Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) are commonly known man-made chemicals used in industry and consumer products since the 1940s.  Many refer to these as chemicals “forever chemicals” because they do not break down in the environment.  In 2016, the EPA stated that forever chemicals were not a threat at low levels.  However, in 2022, the EPA updated drinking water advisories, stating that PFOA and PFOS could be dangerous to human health in water even with concentrations at near zero.  Essentially, any amount of PFOA or PFOS found in drinking water poses a risk to human health.  Researchers have detected PFOS and PFOA  in the blood of humans and animals worldwide.  The health effects following exposure to low levels of these chemicals are currently unknown; however, in large amounts, these chemicals can affect development, reproduction, and damage the liver.

A new study from the Environmental Working Group indicates that the drinking water of a majority of Americans likely contains “forever chemicals.”  By the end of 2022, the EPA plans to propose a National Primary Drinking Water Regulation for PFOA and PFOS, with a goal to finalize the rule by the end of 2023.  Litigation surrounding forever chemicals is growing.  In Philadelphia, 3M and DuPont face claims for design defect, failure to warn, nuisance, trespass, and negligence for using PFAs in their products, after city and state officials discovered unsafe levels of PFOA and PFOS in the city’s drinking water.  3M has been named a defendant in several lawsuits and may face $30 million in liability.  CoverGirl is facing litigation for deceptively marketing its products as safe, despite containing PFAs.

If large populations of people begin to experience side effects tied to PFOA or PFOS exposure, then companies whose products contain these chemicals may also be subject to liability.  If an injury is caused by a toxic substance, then the responsible companies may be liable for a toxic tort.  Commonly known toxic tort litigation historically surrounded the use of asbestos and DES, a cancerous drug prescribed to pregnant women. Forever chemical litigation may resemble those cases given that scientists are discovering adverse health effects after widespread use of these products.

Duty and Breach

Companies using forever chemicals may be held to a higher standard of care given that a reasonable company would have made efforts to avoid the contamination of drinking water.  To determine if a company acted reasonably, a court may evaluate whether there was a foreseeable risk of injury.  However, in the case of forever chemicals, this may be a difficult task.  Forever chemicals have been used since the 1940s, but it wasn’t until 2022 that the EPA updated drinking water health advisories.  Plaintiffs will need to establish that the defendants knew the risks associated with these chemicals and continued to use them.  DuPont and 3M allegedly knew of these risks for decades.

Companies may also be held strictly liable for the discharge of forever chemicals.  The advantage of suing under a theory of strict liability is that plaintiffs do not have to prove fault.  Defendants can be held strictly liable if they engage in ultrahazardous activities.  Manufacturing and distributing products that use forever chemicals may be considered an ultrahazardous activity.  Unfortunately, strict liability will depend on the nature of the product.  Strict liability may not apply if the usefulness of the product outweighs the risks to the consumer.  Products utilizing forever chemicals are often very useful.  For example, customers for decades have found non-stick cookware extraordinarily useful.  

Companies have a duty to follow federal laws, and violation may establish a breach of duty.  Forever chemical contamination of drinking water has implications under the Safe Drinking Water Act (SDWA) and the Clean Water Act (CWA).  Under the SDWA, the EPA sets maximum contaminant levels for public drinking water.  Currently, PFAs are not considered primary or secondary contaminants.  However, in 2022 PFAs were added to the Contaminant Candidate List.  Until the EPA lists forever chemicals as chemical contaminants under the SDWA, it could be difficult for plaintiffs to hold companies liable for violation of the Act. The EPA plans to set a non-enforceable maximum contaminant goal level, as well as an enforceable maximum contaminant level. The maximum level is set at the point where there are no known or anticipated health effects on people.  Given the EPA’s recent health advisory, the standard for PFAs will likely be set at near zero.  Additionally, the Clean Water Act regulates pollutants in the Waters of the United States.  The EPA has issued a memo to reduce permits allowing PFA pollutants.  If a company releases forever chemicals without or in violation of a permit, then this could establish liability.  Plaintiffs will have the largest likelihood of proving a breach of duty if they establish that a company violated either the SDWA or the CWA.

Causation and Damages

In a typical tort case, plaintiffs must establish that the defendant’s actions were a but-for cause of their injury.  In the future, several companies may be liable for their use of forever chemicals.  However, plaintiffs could face challenges in allocating their injuries to specific companies.  To prove liability in a toxic tort case, plaintiffs must identify the substance that resulted in injury.  A plaintiff may be successful in tracing forever chemicals to where the chemicals were used, and perhaps even trace chemical combinations to the area where their injury occurred.  However, the pervasiveness of forever chemicals in the environment could impose challenges for plaintiffs.  It may be difficult to establish that one defendant caused the plaintiff’s injuries if forever chemicals can be associated with several other companies.  Defendants will likely argue that they are not the but-for cause of the plaintiff’s injuries because other companies’ use of forever chemicals made the injury inevitable. Given that forever chemicals do not break down in the environment, the number of responsible parties may even date back to the 1940s.   

A court may choose to apply market share liability, placing the burden on parties that financially benefited from the use of forever chemicals to prove that they did not cause the plaintiff’s injury.  Market share liability was used to apportion damages in cases surrounding the use of DES.  DES was a drug given to pregnant people between 1941 and 1971 to prevent miscarriages.  DES was shown to cause cancer in daughters due to their exposure to the drug before birth.  The court in Sindell v. Abbott Laboratories held that “[e]ach defendant will be held liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused the plaintiff’s injuries.”  Market share liability was applied to DES cases because it was impossible to prove which company contributed to the plaintiff’s injury.  The amount of liability corresponded to each manufacturer’s market share.  

However, DES cases differ from the use of forever chemicals because forever chemicals cross over several different markets.  Given the difficulty of establishing each company’s share of a market when there are several different markets, a court may choose to apply a theory of alternative liability.  In Summers v. Tice, the court held that if multiple parties acted negligently, and it is not possible to prove which defendant caused the plaintiff's injury, then the burden shifts to the defendants to show that they did not cause the plaintiff’s injury.  Alternative liability may be the best way for plaintiffs to hold multiple defendants liable given that the use of forever chemicals spans several markets.  The burden would be shifted to companies to show that they did not pollute the public’s drinking water with forever chemicals.

Even if plaintiffs shift the burden to defendants to establish that they were not the but-for cause of the injury, defendants may still escape liability if they were not the proximate cause. In Palsgraf v. Long Island Railroad Co., the court held that defendants only owe a duty to expected plaintiffs within the zone of reasonably foreseeable harm.  Defendants may argue that holding companies liable for issues pertaining to drinking water is not foreseeable, especially given the EPA’s change in policy over forever chemicals in 2022.  For many decades, there was no known harm associated with these chemicals, so how could companies foresee harm to the public? The defendants could perceive those who drank contaminated public water as unexpected, unforeseeable plaintiffs. This argument is not likely to be successful given that many defendants, such as 3M and DuPont, acknowledged they knew the risk that forever chemicals posed for several years.  Additionally, under a theory of product liability within a toxic tort claim, a duty is owed to all persons who will be foreseeably affected by the product. This may be broad enough to encompass plaintiffs who did not directly use products containing PFAs but were injured after drinking contaminated water.

Damages may be substantial for companies who manufactured products with forever chemicals.  Should there be widespread health effects associated with forever chemicals, the classes of possible plaintiffs could be large.  Litigation over the use of forever chemicals in products will continue to grow as agencies learn more regarding the health effects of exposure to PFAs.  Punitive damages may be available if the chemicals were well known by the defendant to be toxic, as is allegedly the case with 3M and DuPont.  However, the success of these toxic tort lawsuits may depend on the EPA’s updated regulations promulgated under the SDWA. The EPA should label PFAs as a contaminant under the SDWA.  This will help plaintiffs hold companies liable for any future contamination of drinking water.  Given the difficulty of removing forever chemicals from the environment, strong regulations must be in place to prevent any further damage to the country’s drinking water.

SOURCES

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