For PFAS Plaintiffs, Delays Starting to Add Up

Bloomberg Law. I'm your host, David Schultz. So we all know the Constitution guarantees you the right to a speedy trial, but whichever genius came up with that must never have practiced environmental law. It is far from uncommon for an environmental case to take many years to resolve, especially one that involves complicated science and big corporations. If you ever

seen the movie Aaron Brockovich, you know what I'm talking about. Well, that's exactly what we have here with the litigation over pfasts. Loyal listeners of Parts Rebellion will know that these are the substances that were used to cote nonstick pans and also to put out fires, and also to a lot of other stuff. As it turns out, though they can be pretty toxic and worse, they almost never biodegrade. Which

has earned p FAST the nickname forever chemicals. Of course, the people suing the chemical companies over their exposure to p fas are hoping their cases don't last forever. But in the time of COVID nineteen, when the entire legal system has slowed to a snail's pace, these plaintiffs may not get their wish. And here to talk with me about the delays in the p fast cases is Bloomberg Laus Ellen M. Gilmer Ellen, Hello, Hi. I feel like I should point out right away too that the Constitution

guarantees a speedy trial for criminal prosecutions. Okay, all right, thank you Ellen Gilmer esquire for that legal advice. I appreciate it. I am not a lawyer. Okay, Well, anyway, tell me about pfas. You know, we've talked about this numerous times, you know, on the podcast, but it's pretty complicated, you know, I've written about it dozens of times, and I'm still not completely sure I understand what are these chemicals, These p fast chemicals. So p FAS refers to this

family of man made chemicals that are really common. They're used on nonstick pans, they're used on carpets, they're used on all kinds of household appliances. They're used in firefighting foam. And it's a family of thousands of types of chemicals. And we should say, you know, p fas, of course is an acronym. I'm not saying what that acronym is for because it's very hard to pronounce. Ellen, you can attempt it if you want, I can do it. You

can do it. Per and polyfloro alcohol substances. That was impressive. So the family of chemicals, it's in all of these things. Some types of p fas have been linked to health problems, and that is why pfasts are getting so much attention in these days because those impacts are starting to be better understood and there's a lot of litigation over it. Yeah, so the lawsuits I guess are about the mainly people were exposed to p fas or also people who may

have to pay to clean up p fast. You know, the lawsuits are going in a lot of different directions. Can you just, I mean really briefly tell me you know where they are and what stage they're at and what's going on with these suits? Right, So there's this whole world of p FAST litigation that's kind of moving at in fits and starts in different courts on different issues. Like you say, some of them are people who were

exposed to p FASS through their water supply. So this is a lot of times happening in communities where one of two things is happening. Either one there's a big chemical manufacturing site where p FAS has been released into the local waterways, or to there's some sort of big military base or airport where they're using a lot of this fire fighting foam which has commonly had types of FEFAT in it. So there's one big lawsuit in Ohio that I really wanted to get at. You wrote about

it in your recent story. It was supposed to go to trial like last week, I guess, But I guess that's not happening due to all of this pandemic stuff. What's going on with that? What's that trial about? And why was it delayed? Yeah? Sure, yeah, we'll unpack all

of that. So this is a case in Ohio. It's actually a bundle of a couple of dozen or a few dozen cases that all have to do with residents of along the Ohio River who were exposed to some types of PFEST in their water supply from a DuPont chemical manufacturing site that's down there on the Ohio River. So this litigation, like its origin story is like two

decades old. If you saw the movie Dark Waters, which came out last year with the is a Hollywood movie with Mark Ruffalo, that movie was about this real life lawyer, Rob a Lot, who started this crusade about twenty years ago, more than twenty years ago. And so this case that was supposed to go to trial last week was an outgrowth of all of that litigation that really got the

ball rolling on PFAS overall. And we should say Rob a Lot, the real life lawyer who was depicted in that movie, was a former guest on this very podcast. The actor who played him, Mark Ruffalo, was not maybe one day, but I think our listeners should go back and listen and listen to Rob a Lot. Anyway, Yeah, it was a good episode. I was. He's an interesting guy.

So there are all these cases from individuals who were exposed to it and people who have certain health impacts that they think is linked to their p FAS exposure. They have filed lawsuits. All their lawsuits are bundled together in what's called multidistrict litigation, and what happens there is a judge kind of oversees all these cases and then individual cases get set up for trial. So there's already been a couple of trials that happened earlier this year.

There was supposed to be a trial last week starting on June first. That was really one of these cases everybody was really focused intently on. It included actually six different plaintiffs, at least one of whom had cancer, others had other health impacts, and so they were really eager to litigate their claims, and DuPont was eager to get

these claims litigated as well. Right, And I actually wanted to talk with you about the stakes for DuPont because a lot of these cases have settled and DuPont has paid out settlements, especially in these Ohio River cases, but some of them aren't, and they're the ones that are

going to trial. Of course, I imagine DuPont is also pretty eager to settle this and to find out how much it's going to have to pay to the cases that aren't or to the plaintiffs that haven't settled, and that this these COVID related delays are a setback for them on that phone as well. Right, So DuPont executives have you know, made some statements about really wanting to

take care of all of this lingering pfast litigation. What that means for how what their strategy is for individual cases, you know, we don't know that and they haven't said. But it was a trial that everyone you know that there was a lot of anticipation for. It was delayed obviously because of the pandemic. Courts just aren't doing a lot of in person proceedings. Jury trials via zoom are not something a lot of courts are eager to do.

Though a couple have tried, I can't say I blame them. Yeah, So so it's just been scrapped from the calendar and it hasn't been rescheduled yet, and you know, it's not going to take the top priority when they are able to do in person proceedings again, because they're going to need to do all this criminal law stuff first, that's really the top priority, and then they'll get to the civil stuff. And what we're talking about is civil litigation. And this is also affecting other cases that are much

earlier along in litigation. You know, I'm thinking of that big case, consolidated case down in South Carolina that's you know, nowhere near trial, but that's it's still being affected by delays, Like what's going on there. Yeah, So this is a case that has to do with the firefighting foam that we talked about, and there are just hundreds of individual

cases that have to do with the firefighting foam. Who should clean it up, who's you know, who's responsible for it getting into the environment, and any impacts that's had. And they're in the early phases of that, like you said, they're in the discovery process, kind of even the early stages of the discovery process where each side gets to you know, collect documents from the other side and depose people from the other side to try to bolster their

own case. So there have been hang ups with that because the corporate defendants three M is a defendant in that litigation DuPont again Chemores, which is a DuPont spin off. All these companies are involved in that, and they're trying to deal with, well, how do we do a deposition when we can't do it in person. Sure we can do a zoom deposition, but we'd like to at least prep our witnesses in person. You know, we want to not witnesses, but we want to prep this corporate official

in person. And do you know this in depth? You know, day long preparation before we put them, you know, on a zoom deposition where quite a lot is at stake. So that's been kind of a hang up there. All right, Well, we're going to take a quick break now, but when we come back, we're going to talk about how this could affect the outcome of these very significant pieces of litigation. Stay with us. So we are back and we're here with Ellen M. Gilmer talking about delays in really significant

p fast related lawsuits. Ellen, one of the things that I really liked about your story is that you talk to attorneys who've been involved in similar litigation to this, and you said, you know what happens when there are delays in these big kind of environmental cases, and they said, almost universally, it always benefits the defendants. Can you tell

me a little bit more about that and why that is. Yeah, So I talk to a lot of lawyers who work on big tort litigation like this, and toxic torts specifically, and the conventional wisdom they say is you know, delays don't favor the plaintiffs. And the big reason for that is in a lot of these cases, particularly in the kind of mass proceedings where you have a lot of different lawsuits bundled together, what you really want is to

create pressure for settlement. And that's not always the case, and we don't know if that's the case in all of these individual lawsuits, but that's often a strategy for getting your legal complaints your legal complaints resolved. And the biggest kind of trigger point for a settlement is a trial. And so if you have all of these delays that are just delaying the actual trial or delaying all of these pre trial things like discovery, it's going to take

longer for you to get to trial. It's gonna take longer for you to get to that. If you're the plaintiff, it's going to take longer for you to get to that pressure point where the defendants say, all right, maybe it's time to make an offer. Yeah, that's a really good point. I mean, we talked to our earlier about how you know the defendants here, these big chemical companies like DuPont, three am Camors, how you know they might be eager to have these these issues wrapped up so

they can get them off their balance sheets. But on the other hand, you're right, I mean, these delays will give them more time to come up with strategies to deal with them, and it also allows them to maybe delay having to settle with the plaintiffs. I mean, is is that what are you hearing from any of the plaintiffs in these cases or plaintiff's attorneys are there saying like, we really want to, you know, get this moving, but

we just can't because of all these pandemic delays. Well, yeah, definitely. And you know, one of the lawyers who is involved in the firefighting foam litigation that we talked about, he said, you know, we were talking about the discovery process and how the defendants are uncomfortable with doing depositions without in person preparation for some of the depositions. He said, you know, the defendants might want to stall because that's a good

strategy for them. And he said, I don't know that they're doing that, but they might want to because that would be in their interest to hold off give themselves more time just to prepare. They've got. You know, there's great legal teams on both sides. And the more time, you know, your opponents have to prepare, you know, that's hard.

And the plaintiffs at this point have kind of done all their preparation, put it all out there, and now they're ready to, you know, get the documents and depositions from the other side and start building out their case.

And I assume that the defendants or the defendants attorneys that you spoke to or at least tried to speak to, they didn't have anything to say about this, did there Well, so you know, DuPont didn't want to talk about this litigation, but we do have you know, we can see the transcripts from some virtual court hearings that happened where they're discussing their argument with the judge in the firefighting foam case, and they were just explaining like, Okay, you know, we

see this as not a perfect world. We are willing to do some zoom stuff. We are willing to make some compromises that we wouldn't usually love, but we need to draw a hard line. We can't let our corporate officials be be deposed without in person prep. So that was that was their position. You know, that they could do some other some make some other accommodations, but that was a bridge too far for them. So that actually leads me perfectly into my last question, which is that

what's next here? I mean, obviously, you know, the judges can delay these cases for a while, even months, but they can't be delayed forever. You know, at some point these trials have to move forward, or these depositions have to move forward. Do you get a sense of when the judges in these case will say, you know, hey, I know you don't want to do you know, zoom depositions, but sorry, you're going to have to move forward, or our judges being really lenient here and saying, look, you know,

this is a crazy situation. Take as much time as you want. You know, we understand you guys are are not able to do what you want to do. Like it. Which way are the judges in the case these cases leaning? It's definitely not the latter judges you know have We're pretty accommodating at the beginning, but as you mentioned, like they don't want to sit around all year and wait

for things to go back to normal. Uh. In the firefighting foam litigation, the judge in that case, he's been running a really trying to run a very efficient proceeding there. That's the one that has like hundreds of cases bundled together. He wants that moving along, so he has been nudging it forward and he has said, you need to sort out your differences and get this thing going because we're not going to argue about this. So all year, uh, in the Ohio case, we haven't really heard anything. We

don't know when it's going to be rescheduled. And that seems like a little more understandable just because I mean, yeah, how it's a jury trial. How could you possibly do a jury trial over like Zoom or Sky like just I don't know. That's a tough situation for those those folks. Absolutely, and there have been some bench trials where it's just a judge that have been happening virtually, and some jury trials, and there's plenty of great coverage of that in Bloomberg Law.

But it's not ideal. It's a very very hard, especially for a jury trial. How are you going to get all these people to be sitting on their computers and taking in these complex proceedings and know that they're paying attention with matters that you know are extremely important in high consequence, so that is not something they want to do. And the lawyers said like, yeah, I mean even the lawyers who are eager to go to trial, they don't want a zoom trial. Yeah, I don't blame them. Well,

that'll do it. For today's episode of Parts Pavilion. If you're at all interested in Pfast, you are in luck. We just launched a big project that investigates all angles of this issue. It collects all of our work, podcast videos, investigative pieces all in one place, and that place is bloomberglot dot com, slash p Fast Hype and project that you are all once again is blueberglau dot com slash Pepass Hyphen Project. Go check it out right now. It

is awesome. Today's episode of Parts Rebellion was produced by myself along with Josh Block and Norris of Horn. Special help today came from Anna Yukonanov. Parts Rebellion was created by Jessica Combs and Rachel Daegel, and the music for today's episode is a Message by Jazzar and Bossily Brave by Vincent Francois Perrot. They were used under a Creative Comments license. Thank you everyone for listening. Those nine justices in Washington that can be pretty hard to keep track of.

That's where we come in. I'm Jordan Rubin and I'm Kimberly Robinson. On our podcast Cases and Controversies, we give you a week by week accounting of the Supreme Court, the filings, the arguments, the opinions, and much much more. So. Check in on Fridays with Cases and Controversies to find out what's coming up on the horizon at the Supreme Court. Download and subscribe wherever you get your podcasts.